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1 

3 



y^^y^S 



THE LAW 



OP 



HUSBAND AND WIFE, 



AS RESPECTS PROPERTY. 



VOL. II. 



I 

i 



London : 

Spottiswoodk and Shaw, 
New-strecuSquare. 




TREATISE 



ON 



THE LAW 



OP 



HUSBAND AND WIFE, 



AS BESPECTS PROPERTY: 



PARTLY FOUNDED UPON BOPER 8 TREATISR, AND COMPRISING 
JACOB*S NOTES AND ADDITIONS THERETO. 



BY 



JOHN EDWARD BRIGHT, ESQ. 

OF THE INNER TEMPLE, BARRISTER- AT-LAW. 



IN TWO VOLUMES. 



VOL. II. 









« • « • 



^ •• • 

^ W w» * 

- * ; 



•-. • r • * 



«# i« 1^ 



LONDON: 
WILLIAM BENNING & CO., LAW BOOKSELLERS, 

43, FLEET 8TBEET. 
1849. 



UUARY OF THE 

l£UtB STAKFORO, JR„ milYEimfr 

UW DEPART liEHJ. 



* • V 



«• 



• ••• • 

• • • 



• • • 

• _ • •• • 

" - • • • 



THE LAW 



OF 



HUSBAND AND WIFE, 



AS HESPECTS PROPERTY. 



CHAPTER XXIL 

OF THE HUSBAND*S LIABILITY FOR HIS WIFE'S DEBTS AND 

CONTRACTS. 



SECTION I. 

OF THE HUSBAND'S LIABILITY FOR HIS WIFE'S DEBTS 
CONTRACTED BEFORE MARRIAGE. 



1. lAahle for w\f(^s debts due at 

time of marriage, 

2. Onfy Uabh during marriage, 

3. Although he has received large 

fortune with wife, 

4. Liability where wife*s admini* 

straior, 
6. Presumptive evidence of mar^ 
riage sufficient. 



7. jff' husband dies before debt re* 

coveredy wife surviving liable, 

8. Unless where husband insolvent 

or bankrupty and discharged. 

9. Where husband liable for judg^ 

ments obtained for debts dtte 
by wife before marriage, 
II. Execution on judgments against 
wife. 



1. As the law by marriage gives to the husband all his 
wife's personal estate in possession, and the power of recover- 
ing her personal property in action, it, not without reason, 

VOL. n. B 



• • • 



• 



- • • • 

2 HUSBAND^a XlilpiLITV'FOB WIFE^S DEBTS 

• • •• • . 
• • •• •• • 

makes hiiii 'liable for his wife's debts owing at the period 

* * • • • 
of.inama^e: * 

. rVlii Thb ]irf,mty, however, aa it originates in the numiage, 

• • • 

• '• * ceases with it ; so that if the debts are not recovered during 
its continuance, the husband will be discharged if he survive 
his wife, (a) 

3. The husband surviving wiU be discharged from liabiHty 
although he may have received a large fortune with his 
wife ; and this seems to be just, because his liability during 
her life would have been the same if he had received nothing 
with her. 

4. But when property belonging to the wife vests in the 
husband, not in his marital right, but as the administrator 
of his wife, he is liable to the extent of her assets ; for since 
he cannot recover her property outstanding at her death, 
except as her administrator, it will, as in ordinary cases, be 
assets to pay her debts. 

5. Thus, in Heard v. Stanford (6), the defendant's wife, 
before marriage, gave a note for 501. to the plaintiff in con- 
sideration of five years' service, and then married the de- 
fendant, who received with her a fortune of 700^., part of 
which consisted of choses in action, some of which the de- 
fendant received as husband, and the remainder he took 
as administrator to his wife. The question was, how far in 
equity the husband was liable to pay this debt of his wife ? 
And Lord Talbot, after detailing the law upon the husband's 
liability, decreed an account of what the husband had re- 
ceived since his wife's death as her administrator, and 
declared that the husband should be liable for so much only. 
And as to any further demand, he dismissed the bill. 

— 6. In an action against the husband for a debt due by 
the wife dum sola^ presumptive evidence of the marriage is 
sufficient, (c) 

(o) Roll. Ab. 351. Earl of Suffolk, 1 P. W. 465—468 : 

{b) 3 P. W. 409 ; Ca. Temp, and Tjler v. Lake, 4 Sim. 150. 
Talbot, 173 : see also Thomond v. (c) Tracey r. M'Arlton, 7 Dowl. 



OOKTBACTED BBFOBB MABBIAOS. 3 

7. If the husband dies before the debt is recovered, the 
wife surviving is liable, (a) 

8. But the wife surviving is not liable where the husband 
has been discharged under the insolvent debtors act (6), or, 
having been a bankrupt, has obtained his certificate, (c) 

9. With respect to judgments obtained for debts owing 
by the wife whilst single, there is this distinction in regard 
to the husband's liability. If the judgment be recovered 
previously to the marri&ge, and the wife die before the 
suing out of execution, the husband wiU be discharged from 
the demand ; but if the judgment had been recovered against 
both of them, and the wife died before execution, the hus- 
band will continue charged ; because by the judgment the 
nature of the debt was altered, and from that time it be» 
came his own debt, (d) 

10. And for the same reason if judgment be recovered 
against the wife while sole, and a scire facias be brought 
upon it after the marriage, against the husband and wife, 
and a judgment be obtained on the scire facias j the husband 
will be charged after the wife's death, (e) 

11. When a judgment is obtained for a debt against a 
single woman, who afterwards marries, the execution upon 
it must be against her alone, because the execution must 
follow the judgment. (/) But if it be desired to charge a 
person with the debt recovered, who was no party to the 



P. C. 633 ; S. C. Dacey v. M'Carter, 
3 Jar. 124 : and see Evans v. Mor- 
gan, 2 Cromp. & Jer. 453: and 
Leader v. Barrj, 1 Esp. 353 : but 
see Cowley v. Robertson and wife, 
3 Campb. 438. 

(a) Woodman v. Chapman, 1 
Campb. 189. 

(b) Lockwood V. Salter, 5 B. & 
Ad. 303 ; 2 Nev. & M. 255 : but see 
Sparkes v. Bell, 8 B. & C. 1 ; 2 Man. 
& By. 126. 



(c) Miles V. Williams, 1 P. W. 
257 : in re M'Williams, 1 Sch. & 
Lef. 169. 

(d) Obrian v. Ram, 3 Mod. 186 : 
Eyres v. Coward, Sid. 337: Tre- 
viban v. Lawrence, 2 Lord Raym. 
Rep. 1050. 

(e) Obrian v. Ram, ubi sup. 

(/) Cooper V. Hunchin, 4 East, 
521. Where a woman who had 
given a warrant of attorney, mar- 
ried during the term, and was after* 



B 2 



4 JUDGMENT AGAII^ST WIFE BEFORE BfABRIAGE. 

record, as the husband in this case, a scire facias ought to 
be issued making him a party to it. (a) 

12- And if a woman marries pending an action against 
her, and judgment be afterwards obtained against her alone, 
execution may issue against her by capias ad satisfaciendum^ 
or by habere facias possessionem, in an action of eject- 
ment, (b) 

13. But her goods, having become the property of the 
husband, cannot be taken by fieri facias under this judg- 
ment, (c) 

wards taken in execution upon a {b) Ibid. : Thorpe v. Angles, 1 

judgment signed as of that term, and Dowl. & L. 831 ; 13 Law J. N. S. 

therefore having relation to the first Q. B. 143 ; 8 Jur. 602 : Yin. Ab. 

daj of the term, it was held that she Bar. & F. K, a. 

could not be relieved, Triggs v, (c) See Doe v. Butcher, 3 M. & S« 

Triggs, 2 M. & By. 126 n, 557 : Cooper v, Hunchin, ubi sup. : 

(a) Cooper v. Hunchin, 4 East, and Yin. Ab. Baron & Feme, K a. 
521, 



RULS AS TO husband's LIABIUTY. 



5 



SECTION n. 

OF THE HUSBAND'S LIABILITY FOR HIS WIFE'S DEBTS CON- 

TRACTED DURING THE MARRIAGE. 



1. Wife cannot contract without 

husbands express or implied 
authority. 

2. Rule laid down, 

5. Cohabitation presumptive ert- 
dence of authority » 

7. But presumption repelled^ if ar^ 

tides purchased are not ne- 
cessaries, 

8. What wiU be considered neces- 

saries, 

9. What are not necessaries. 
10. To be determined by jury, 

12. Whether husband liable if wife 

borrow money to pay for «€- 
cessaries. 

13. Not liable if wife adequately 

supplied, unless his authority 
proved. 

14. Husband liable to greater extent 

if more extensive authority 
given. 



15. As where he allows her to buy 
or retain the articles. 

17. Whether husband's authority 

given to be determined by jury. 

18. Husband^ s assent for purchase 

of necessaries implied if he 
turns wife out of doors. 

19. Notice not to give credit to wife 

ineffectual, 

20. Liable also where by ULireat' 

ment wife obliged to leave him. 

21. What iU'treatment will justify 

wife in leaving him. 

22. Horwood v. Hoffer. 

25. Effect of husband's request that 

she shall return. 

26. Husband liable for necessaries 

where separation by consent 
unless wife has provision. 

27. Upon whom onus of proof lies 

where husband sued. 



1. With a view to the safety of the husband, the law disables 
the wife from making any personal contract, or incurring 
any debt to bind him, without his express or implied au- 
thority, (a) 

2. The rule as to the husband's liability was thus laid 
down by Bayley, J., in the leading case of Montagu v. 



(a) Gilb. Law of Evidence^ 183: Smith v. Sheriff of Middlesex, 15 
Earl of Derby's case, 4 Leon. 42 : East, 607. 

B 3 



6 WBma HUSBAND LIABLE FOB WIFB'S PEBTS 

Benedict, (a) ^^ If a man without any justifiable cause turn 
away his wife, he is bound by any contract she may make, 
for necessaries suitable to her degree and estate. If the ' 
husband and wife live together, and the husband will not 
supply her with necessaries, or the means of obtaining them, 
then, although she has her remedy in the Ecclesiastical Court, 
yet she is still at liberty to pledge the credit of her husband 
for what is strictly necessary for her o\vn support. But when- 
ever the husband and wife are living together, and he provides 
her with necessaries, the husband is not bound by contracts 
of the wife except where there is reasonable evidence to show 
that the wife has made the contract with his assent, (b) Co- 
habitation is presumptive evidence of the assent of the hus- 
band, but it may be rebutted by contrary evidence ; and when 
such assent is proved, the wife is the agent of the husband 
duly authorised." 

3. Thus the husband's liability may arise from the contract 
having been made by his wife as his agent, or from bis im- 
proper reftisal or neglect to supply her with necessaries. 

4. In cases depending on the first of these grounds, the 
wife's authority to contract in her husband's name is either 
proved or inferred as a fact from the circumstances and the 
relation between them. 

5. The circumstance of cohabitation is sufficient presump^ 
tive evidence of an authority to contract for necessaries (c). 



(a) 3 B. & C. 635 ; see also the 
remarks of Lord Abinger, in the 
cases of Emraett v, Norton, 8 Car. 
£s P. 506 : and Hardie v. Grant, 8 
Car. & P. 516. 

(b) Etherington v. Parrott, Lord 
Bajm. 1006. 

(e) Bull N. P. 134: Langfort v. 
Tyler, Salk. 113: Atkins v. Cur- 
wood, 7 Car. & P. 756: see also 
Dier v. East, 1 Yentr. 42 : Beaumont 
o. Weldon, 2 Yentr. 155 : Manbjr v. 
ScQtt» 1 Bac. Ah. 714, 7tli ed. ; 1 



Mod. 124 ; 1 Sid. 109 ; 1 RoU. Abr. 
351, pi. 5; Bridgman's Judgments 
bj Bannister, 229 : Stone v. Walter, 
ibid. 618. For the same reason, a 
man is liable for the debts of a 
woman with whom he cohabits, 
holding her out to the world as his 
wife. Watson v. Threlkeld, 2 Esp. 
637 : Robinson v. Mahon, 1 Campb. 
245 : see Munro v, De Chemant, 4 
Campb. 215 : Blades v. Free, 9 B. & 
C. 167. 



COKTBACTED DUBINQ COHABITATIOK, 7 

for, as it was observed by Lord Abinger, C. B., in a late 
case (a), a wife would be of little use to her husband in their 
domestic arrangements if she could not order such things as 
are proper for the use of a house and for her own use without 
the interference of her husband. The law therefore pre- 
sumes that she does this by her husband's authority. 

6. This presumption will be the stronger if she has been 
permitted by him to purchase articles for the use of the 
house and fitmily. (b) 

7. But this presumption will be repelled, if, whilst the 
husband and wife live together, the articles purchased by 
the wife are not such as can be classed among those which 
can be considered as necessaries ; so that in the absence of 
the husband's express authority, it appears requisite to 
prove, with a view of fixing liabiUty upon him, that in other 
instances of the like kind the wife was in the habit of pur- 
chasing similar articles with the concurrence of her hus- 
band (c) ; for if the goods are unsuitable to her rank in life, 
either in kind or quantity, and to her husband's circum- 
stances, his authority for the contract or purchase will not 
be implied, (d) 

8. Necessaries, besides board and lodging, are such articles a/^3 4^ ^^ 
as comport with the wife's situation in life and her husband's 
fortune, and are usually worn or possessed by persons in 

similar conditions of life, {e) Among the articles which 
have been considered as necessaries are medicines, medical 
attendances, and reasonable expenses during illness (/) ; 
furniture of a house for a wife to whom the Court had de- 
creed 380Z. a year alimony {g) ; expenses incurred by the 

(a) Emmett v. Norton, antt^ p. 6. (e) Ozard v. Durnford, Sel. N. P, 

(ft) 1 Sid. 128. 260 : Turner v. Winter, ibid. : Den- 

\e) Morton v. Witbens, Skin. 349. njs v. Sargeant^ 6 Car. & P. 419 : 

{i) Montague «. Benedict, 3 B. & Berreblock v. Micbael, Cro. Jac. 

C. 631 ; 5 Dow. & By. 532 : Atkins 257, 258. 

«. Curwood, 7 Car. & P. 756 : Mon- (/) Harris r. Lee, 1 P. W. 438. 

tagne v. Espinasae, 1 Car. U P. (g) Hunt v. De Blaquiere, 5 Bing. 

359. 550. 

B 4 



8 WHERE HUSBAND LIABLE FOB WIFE^S DEBTS 

wife in exhibiting articles of the peace against her hus- 
band (a) ; and this, although they were living apart, and 
he allowed her a separate maintenance (b) ; so also the 
costs of the proctor employed by her to defend a suit for a 
divorce, (c) 

9. On the other hand, articles of jewellery have been held 
not to be necessaries for the wife of a special pleader, (d) 
A deed of separation is not a necessary (e) ; nor is the hus- 
band liable for the expenses of an indictment by the wife 
for assault and imprisonment as such. (/) 

10. What are to be considered necessaries in each parti- 
cular case, is a point to be decided by the jury, (g) 

11. It seems that where the husband is liable, the trades- 
man may recover for articles supplied up to the date of the 
record. (A) 

12. When the wife purchases necessaries, and pays for 
them with money borrowed by her from a stranger for the 
purpose, although at law, as appears from the case of Earle 
V. Peale (e), such a loan could not be established against her 
husband, yet upon proof of the money having been properly 

(a) Shepherd v. Mackoul, 3 Camp, to obviate the inconyemence and de- 
326 : see Williams v. Fowler, M'Cle- lay that might otherwise arise in the 
land & Younge, 269. progress of the cause from the wife's 

(b) Turner v. Rookes, 10 A. & E.; want of funds, 1 Hagg. EccL R. 374. 

2 Per. & D. 294. It, however, admits of an exception 

(c) Ex parte Moore, 1 De Gex, where the wife has separate propertj 
173 ; 14 Law J. N. S. Bank. 19 ; sufficient to maintain herself, and to 

9 Jur. 605. In suits in the ecclesi- carry on the suit See Wilson v. Wil- 
astical courts, the general rule is son, 1 Hagg. 203, and the cases there 
that the husband pays the costs on cited: and Westmeath «. Westmeath, 
whichever side the suit begins, and 2 Hagg. Eccl. R. 133. 

as soon as the marriage is admitted {d) Montague v. Benedict, 3 B. 

or proved, the wife's proctor may £s C. 631. 

call upon the husband for payment (e) Ladd v, Lynn, 2 M. & W. 265. 

of his bill up to that time. Bell v. (/) Grindall «. Godmond, 5 A. & 

Bird, Sir G. Lee's Eccl. Cases, vol. 1. E. 755. 

p. 209 : Portsmouth v, Portsmouth, (g) Lane v. Iremonger, 13 Mees. 

3 Add. 67 : Beevor r. Beevor, 3 & Wei. 368 ; 14 Law J. N. S. Ex. 
Phill. 261 : see Belcher v. Belcher, 35 : Harvey v, Norton, 4 Jur. 42. 

1 Curt 444 : Stone v. Stone, 7 Jur. (A) Joll t?. Fisher, 5 Car. & P.514. 
1094. This rule has been established (t) 1 Salk. 387. 



CONTRACTED DUBINQ COHABITATION. 9 

applied, a Court of Equity will interfere, and allow the cre- 
ditor to stand in the place of the persons who actually sup- 
plied her with the necessaries, to receive satisfaction against 
the husband, to the value of the articles proved to have 
been delivered to her. (a) 

13. But if the wife is adequately supplied with necessaries 
by the husband, she is not his agent for the purchase of 
even a single article, unless an express authority be shown 
to have been given by the husband, or an authority can be 
implied by the fact of his having seen her wear the articles 
furnished without expressing any disapprobation, (b) 

14. The wife's contracts during cohabitation will bind the 
husband to a greater extent if the evidence warrants the 
inference that a more extensive authority has in fact been 
given, (c) 

15. Thus the husband will be liable when the goods pur- 
chased by her (to the payment for which he would not be 
liable) come to her or his use with his knowledge and per- 
mission, or when he allows her to retain and enjoy them. In 
such cases the law considers the wife as her husband's agent, 
and implies a promise on his part to pay for the articles. 

16. So also when the husband permits his wife to assume 
an appearance beyond his ability to support, the like autho- 
rity and promise will be presumed, (d) 

17. Whether the acts of the wife were done by the autho- 
rity of the husband, is a question for the jury, (e) 



(a) Harris v. Lee, 1 P. W. 483. 
In JenkiDs v. Fisher, 1 H. Bl. 90, 
where the husband went abroad, 
leaving his wife, who died in his ab- 
sence, it was held that a third person 
who voluntarily paid the expenses 
of her funeral, might recover them 
from him. 

(b) Seaton v, Benedict, 5 Bing. 
28 ; 2 Moo. & R 74 : Etherington 
V. Parrott, 2 Ld. Raym. 1006. 

(c) As to evidence of the hus* 



band*s assent, see the cases cited in 
the reporter's note to Filmer v, Lynn, 
4 Nev. & Man. 559: see also 
M'George v. Egan, 7 Scott, 112: 
and Plimmer v. Sells, 3 Nev. & Man. 
422. 

{d) Waithman v. Wakefield, 1 
Canipb. 120. 

(c) Attorney-General v. Riddle, 
2 Cr. & Jer. 493 ; 2 l^r. 523 : 
Barnes v. Jarrett, 2 Jur. 988. 



10 husband's lubiutt whbbb he 

18. With respect to the other ground of the husband'9 
liability, namely, his improper refusal to supply his wife 
with necessaries : when the husband has turned his wife out 
of doors without provision aod without sufficient cause, his 
assent to her contracts for the purchase of articles of ne- 
cessity is implied by a fiction of law founded on his duty 
to provide such articles for her, and independent of any 
evidence from which it can be inferred as a fact that she 
has his authority to bind him. 

19. Hence he is not discharged from the liability by 
showing that the contract was in fact made without his au- 
thority and contrary to his wishes, as by proving a general 
advertisement or particular notice to individuals not to give 
credit to his wife, (a) 

20. The husband is liable in like manner where he, by 
cruel or ill-treatment, has obliged his wife to leave her home, 
for this is equivalent to turning her out of the house, (b) 

21. But the ill-treatment which would justify the wife in 
leaving her husband's house must be such as to excite a 
well-grounded apprehension for her personal safety, not 
merely such as a fSEmciful woman may entertain, but such as 
a jury shall esteem to have been felt upon reasonable 
grounds, (c) 

22. In Horwood v. Hoffer (d)j it was held that the hus- 
band was not liable for necessaries supplied to his wife who 
had quitted him in consequence of his having placed a pro* 
fligate woman at the head of his table ; it was considered 
necessary to show that she had either been driven from the 
house by actual violence, or apprehension for her personal 
safety. 

23. But in another case (e)j Lord EUenborough observed. 



(a) Harris v. Morris, 4 Esp. 41 : (c) Houliston v. Smjth, 3 Bing. 
Boulton V. Prentice, 1 Selw. N. P. 127 ; 10 Moo. 482 ; 2 Car. & P. 22. 
298, 11th ed. ; 2 Strange, 1214. (d) 3 Taunt. 421. 

(b) Hodges V. Hodges, 1 Esp. N. (e) Liddlow v. Wllmot, 2 Stark. 
P. C. 441. 87. 



AND HIS WUFB AUB LIVIKQ APART. 11 

that th^ husband was bound to afford his wife means of 
support, if by the indecency of his conduct he precluded her 
firom living with him. And in Aldis v. Chapman (a), he 
held that, when a husband by bringing another woman 
under his roof, renders his house unfit for the residence of 
his wife, who thereupon removes, and lives apart £rom him, 
he is bound to provide her with necessaries during the sepa- 
ration. 

24. So, in the case of Houliston v, Smj^h (J), Best, C. J., 
held not only that a woman was not bound to wait till actual 
violence was committed, and that if there was reasonable 
ground for apprehension, she might fly from her husband ; 
but also said that the doctrine in Horwood v. Hoffer, that a 
woman was not justified in leaving her husband's house 
when he placed a profligate woman at his table, could not 
be law. 

25. When the wife has been justified in leaving her hus- 
band, his liability will not be determined by a request on his 
part that she shall return, (c) 

26. In the middle case, between that where the husband 
and wife are living together, and where the wife has left her 
husband, namely, where they have separated by mutual 
consent, the husband is liable for necessaries supplied to the 
wife, unless she has a competent provision either from her 
husband or from her own resources, (d) 

27. As cohabitation is presumptive evidence of the wife's 
authority to contract, it is for the husband to rebut that 
presumption by showing that the goods were suppUed under 
such circumstances that he is not bound to pay for them ; 
but where the husband and wife are living apart, the anus 
lies the other way, and it is for the tradesman to show that 

(a) 1 Selw. N.P. 298, 11th ed. (c) Emery v. Emery, tdfi sup. 

lb) 3 Bing. 127 ; 10 Moo. 482 ; 2 (d) Dixon v. Horrell, 8 Cfur. & 

Car. k T. 22: see also Emery v. P. 717. 
Emery, 1 Tounge & Jer. 501. 



12 



WHAT WILL EXEMPT THE HUSBAND 



the separation has taken place under such circumstances as 
will render the husband liable, (a) 

28. In the case of Bird v. Jones (6), where an action was 
brought against a husband for goods supplied to his wife 
during his absence from England, it was held that it lay 
upon the plaintiff to show what means of subsistence the 
wife possessed. 



SECTION m. 



WHAT WILL DISCHARGE THE HUSBAND FROM HIS LIABILITY 

FOR HIS WIFE'S DEBTS. 



2. Discharged where wife leaves 

him without sufficient cause, 

3. Effect of wifes offer to return. 

5. Where wife leaves him he ought 

to give notice to tradesmen, 

6. But discharged if creditor aware 

of wife* s departure. 

7. Wife's elopement and adultery 

a discharge, 

8. But husband again liable on 

taking her back, 

9. Adultery of wife having left 

husband from his misconduct 
a discharge, 
11. Exception to rule that wife^s 
adultery is a discharge. 

13. Whether vnfe liable when hus- 

band discharged. 

14. Husband discharged where 

goods not supplied on his 
credit. 



18. Or where agreement not to 

charge him, 

19. Who bound to pay for goods 

supplied to wife where huS' 
bands death unknown. 

21. Husband^ on separation^ not 

liable if wife has allowance, 

22. Except for liabilities cafised by 

his misconduct, 

23. But allowance must be adequate, 

24. Except in case of alimony, 

25. And must be duly paid. 

26. Husband not discharged by mere 

covenant to pay allowance, 

28. Or by assignment of property 

where trustees for taife had 
not taken possession, 

29. Not material that allowance 

be secured by deed or writing, 

30. Where husband liable, though 

separate maintenance paid. 



1. We shall now consider the circumstances which will 
discharge the husband from his obligation to keep and 



(a) Mainwaring t?. Leslie, 2 Car. 
& P. 507; 1 Mood. & Mai. 18: 
Clifford V, Laton, 3 Car. & P. 15 ; 
1 Mood, h Mai. 101 : see also Bird 



V, Jones, 3 Man. & Rj. 121 ; S. C, 
Burge V, Jones, 7 Law J., K. B. 59. 
(b) Ubi sup. 



TROM LIABILITT TO MAINTAIN HIS WIFE. 13 

mdntain his wife. The husband will be exempt from this 
duty in all cases when the nature of the transaction is such 
as to preclude all possibility and even propriety to raise an 
implication that the wife acted under his authority. 

2. Thus, if the wife leave her husband's house of her own 
accord, and without a sufficient provision, the law, for want 
of cohabitation (which is the foundation of his liability to 
support her), cannot continue the implied authority from 
him to her to purchase necessaries, which, in consequence 
of her own act, he was not bound to furnish, (a) 

3. Yet if, during her absence, she conduct herself with 
propriety, and offer and submit to return to her husband, 
and he refuse to receive her, then, according to the opinions 
of some persons, debts contracted by her from that period 
for necessaries will bind him ; the implied authority for that 
purpose, which the law had suspended, being revived, (b) 

4. It may, however, be doubted whether these opinions 
are correct ; for since the wife, by her own voluntary act, 
discharged her husband from his obligation to maintain her, 
by unnecessarily quitting his house without his consent, it is 
but reasonable that his liability to support her afterwards 
should not be revived by implication without his express 
concurrence in consenting to his wife's return to his protec- 
tion, or until their cohabitation was restored either by 
mutual agreement, or by the sentence of the Ecclesiastical 
Court, (c) 

5. But until it has become notorious that the wife has 
Tdthdraw herself from her husband's care and protection, 
his liability to engagements for necessaries will, as it seems, 

(a) Etherington v. Parrott, 2 Ld. Rawlins v. Vandyke, 3 Esp. 251 : 
Bajm. 1006 : Longworthj v. Hock- Edwards v. Towell, 6 Man. & G. 
more, cited 1 Ld. Raym. 444 : Manby 624 ; 12 Law J. N. S. C. P. 239 : 
V. Scott, 1 Sid. 130 ; 1 Keb. 430 : Hindley v. Westmeatli, 6 B. & C. 
Bailey v. Callcott, 4 Jur. 699. 200 ; 9 Dowl. & Ry. 351. 

(b) Manby v. Scott, 1 Sid. 129 ; (c) But see Reed v. Moore, 5 Car. 
1 Keb. 365 ; 1 Mod. 131 ; 1 Lev. 4 : <& P. 200. 

Child V. Hardyman, 2 Stra. 875; 



14 HVSBAND DifiCfiABOSD WHERK WIFE SLOfES 

continue (a) ; so that lie ought to give particular notices to 
tradesmen not to give her credit upon his responsibility. 
The propriety and necessity for such notices are apparent 
from the secrecy attending the wife's departure, and the 
improbability of her elopement being generally known until 
some time afterwards. 

6. But proof by the husband of the creditor's knowledge 
of the wife's departure and living separately from him, will 
protect him against the demand, {h) 

7. As the wife's departure from her husband without a 
sufficient reason exempts him frt)m the duty of supporting 
her, it follows, that her elopement, accompanied with adul- 
tery, will discharge him from all obligation to find her 
necessaries, and consequently he will not be bound by her 
contracts for them (c) ; for, under such circumstances, it 
would be unreasonable to continue the implication of his 
authority to her to procure necessaries; and, in such an 
aggravated case, his refusal to take her again will not revive 
his obligation to maintain her. 

8. But if he voluntarily pardon her misconduct, and take 
her back, he becomes again liable, {d) 

9. It may, however, happen that the wife, after being 
under the necessity of leaving her husband from his miscon*- 
duct (in which case his liability to support her continues), 
may, by her own act, discharge him from his obligation to 
find her necessaries. This will occur if, after she has been 
turned out of doors by her husband without sufficient reason, 
she commit adultery. 

(a) Hodge v. Cooper, 10 Law J. Hardie v. Grant, 8 Car. & P. 512. 

N. S. C. P. 218. A man is not liable to the penalty 

{b) 2 Ld. Raym. 1006 : Todd v. of 5 Geo. 4. c. 83. sect 3. for refosing 

Stokes, 12 Mod. 245 ; 1 Ld. Rajm. to maintain his wife, who hat left 

444: Manby 17. Scott, 1 Mod. 124; him, and committed adultery, al- 

1 Sid. 127, 128 : Norton v. Fazan, 1 though he has himself afterwards 

Bos. h PulL 226 : Hinton v. Hudson, been guilty of that offence, Rex v. 

Freem. Rep. 248. Flintan, 1 B. h Ad. 227 ; 9 Law J. 

(e) Morris v. Martin, 1 Stra. 647 : Mag. Ca. 33. 

Manwaring v. Sands, 2 Stra. 707 : {d) Harris v. Morris, 4 £sp. 41. 



I • • 

I 



OB GOJocrrs adultebt. 15 

10. Thus, in Govier v. Hancock (a), the demand was for 
the wife's board and lodging, and it appeared that her hus- 
band had first misconducted himself, and committed adul- 
tery with a woman whom he brought home, and that he 
afterwards ill-treated his wife and turned her out of doors. 
It was also in evidence that she, after being so expelled, 
committed adultery, and at last offered to return home ; but 
her husband would not receive her. The Court was of 
opinion that the plaintiff could not recover his demand 
against the husband, and said, that, although the precise 
case did not appear to have been before controverted, the 
probable reason was, that the point had not been doubted, 
and that it must be governed by the same principle upon 
which it had been determined that the husband was not 
liable in cases where his wife went away with an adulterer ; 
that the rule was not modem, but was mentioned by Lord 
Coke in regard to dower (b) ; that the question was, whe- 
ther the necessaries were provided before or after she had 
committed adultery ? If after, the action could not be 
maintained, and that in the present case if the wife had 
instituted a suit in the Ecclesiastical Court against her hus- 
band for a restitution of conjugal rights, that Court would 
not have assisted her. 

11. But each case depends upon its own particular cir- 
cumstances; and an instance may occur in which the 
adultery of the wife will not discharge her husband from 
his obligation to maintain her. Thus, where the wife has 
committed adultery for some time in her husband's house, 
unknown to him; but that so soon as he has become ac- 
quainted with the circumstance, he, instead of turning her 
out of doors publicly, leaves his own house, and permits her 
to continue in possession of it with the adulterer ; in such a 
case it is expedient for the safety of the public, and their 
dealings one with another, that the implied authority of the 

(a) 6 Term Rep. 603 : see Norton {b) Co. Litt. S2. 
V. Fazan, 1 Bos. h Pull. 339. 



16 EFFECT OP husband's CONNIVANCE. 

husband to his wife to purchase necessaries should not 
abruptly determine, so that in this instance, until their 
separation and her misconduct become notorious, her hus- 
band will be liable to the creditor for necessaries. 

12. This point was determined in Norton v. Fazan. (a) 
The plaintiff brought an action against the husband for 
necessaries sold to his wife and children, and it appeared 
that some time before the delivery of the goods, the husband 
having discovered that his wife kept up an adulterous inter- 
course with another man, quitted her, leaving her in posses- 
sion of his house, with two children bearing his name, and 
in which house the adultery was carried on. The wife was 
without a regular provision. The Court decided that the 
plaintiff was intitled to recover, because the wife was per- 
mitted to remain in her husband's house with her children, 
in which she had been placed by him, and was consequently 
enabled to procure goods upon his credit. But Eyre, C. J., 
said, that if the husband, in any other action, should be able 
to establish the notoriety of his wife's situation, he might 
defend himself; or that if he should be able to prove that 
the plaintiff in such action knew, or ought to have known 
the circumstances under which the wife was living, he might 
perhaps be able to prevent another verdict passing against 
him. (b) BuUer, J., observes : " The wife committed adul- 
tery for a considerable time whilst she was living with her 
husband, and he voluntarily yielded his bed to the adulterer, 
and made no provision for her. What colour of defence is 
left ? Knowing of her criminal conduct, and having made 
no provision for her, he must maintain her as before." 

13. As to the wife^s liability under such circumstances, 
Mr. Roper remarks (c), " Suppose, then, the husband's 

(a) 1 Bos. & Pall. 226. ignorant of the circumstances under 

(b) This seems, as Mr. Jacob no* which she was living, had no means 
tices, (2 Rop. H. 86 W. 117 »,) to of knowing that her authority to 
have proceeded upon the principle contract as her husband's agent was 
that as the wife continued in her withdrawn. 

husband's house, the plaintiff, if (c) 2 Rop. H. & W. 117. 



wife's LIABnJTT WHERE HUSBAND DISCHARGED. 17 

obligation to support his wife to cease by her leaving his 
home, and that she is without any provision; it may be 
asked, who is to be answerable for her necessary debts and 
engagements? The argument in favour of her personal 
responsibility is, that when the husband ceases to be her 
protector, and is not liable to have any claim made upon 
him for her support and maintenance, it follows of necessity 
that she must be her own protectress, make contracts for 
herself, and be responsible for them. Of this opinion, 
BuUer, J., seems to have been in Cox v. Kitchen (a) ; but 
the Court did not decide upon the wife's personal responsi- 
bility merely as a consequence of separating herself from her 
husband, and living in adultery, but because she had, after 
leaving her husband, lived as, and represented herself to be, 
a single woman, and obtained credit in that character. 
This question, however, has been settled in the great case of 
Marshal v. Button, (b) Lord Kenyon, in adverting to the 
above argument, urged in support of the wife's liability, 
observed, that it was not a necessary consequence of the 
determination of the husband's responsibility, that she 
should be at liberty to act as a feme sole ; for if that were 
so, it would hold in all cases, but that the contrary was the 
truth ; for if a woman eloped from her husband, withdrawing 
herself from his protection, and lived in adultery, he was 
not by law liable to answer for her necessaries, and no case 
had decided that she was so ; and that any persons knowing 
her condition, if, instead of requiring immediate payment, 
gave credit to her, they had no great^er reason to complain 
of not being able to sue her, than others who had nothing 
to confide in but the honour of those whom they trusted. 

14. In all cases the husband will be discharged if it ap- 
pear that the goods were not supplied on his credit, but 
that the party supplying them trusted to the wife, (c) 

(a) 1 Bob. & PuU. 339. 22 : Bentley v. Griffin, 5 Taunt. 

(b) 8 Term Rep. 547. 356 : Taylor v. Britten, 1 Car. & 

(c) Metcalfe v. Shaw, 3 Camp. P. 16«. 

VOL. II. C 



18 



WHERE GOODS NOT SUFFLEED OK flIB CESDIT. 



15. Thus, w&erethe husband durmg a temporairy absence 
made an allowance to his wife, he was held not to be liable 
ibr necessaries supplied to her, the tradesman having trusted 
to her promise to pay him out of her allowance, (a) 

16. So he has been held not to be liable where the dealing 
with the wife took plaee on the credit of another (6), aaid 
where the tradesman made out the invoices and accounts to 
the wife, and drew bills of exchange for her to accept., (c) 

17. But where a wife carried on business on her own 
account during the imprisonment of her husband, he was 
held liable for articles furnished with his knowledge after 
his return home, although the invoices and receipts were 
made out in the name of the wife, and she was rated to and 
paid the poors and paving rates, (d) 

18. It need hardly be noticed that the husband is not 
liable where the tradesman has agreed not to charge him. (e) 

19. It seems that the husband's executor is not bound to 
pay for goods supplied to the wife after her husband's death, 
although before information of his death has been re- 
ceived. (/) 

20. And as, in such a case, the wife is not liable, it foDowa 
that no one is liable, (g) 

21. Where the husband and wife have separated, by 
mutual agreement, the husband will not (as it is presumed) 
be liable to the debts of his wife, if, upon separation, he 
provide her with a proper aUowance for maintenance (A), 
and pay it regularly afterwards. 



(a) Holt V. Brien, 4 B. & Aid. 
252 : see also Montague v. Benedict, 
3 B. ft C. 631 ; S. C Montague v. 
Barron, 5 Dowl. & Rj. 532. 

(b) Harvey v, Norton, 4 Jur. 42. 

(c) Freestone v. Butcher, 9 Car. 
& P. 647. 

(d) Pettj V. Anderson, 3 Bing. 
170 ; 10 Moo. 577 ; 2 Car. ft P. 38. 

(e) Dixon v Hurrell, 8 Car. ft P. 



717. 



(/) Blades v. Free, 9 B. ft C. 
169. 

(jff) Smout «. nbary, 10 Mees. ft 
Wei. 1. 

(A) Todd V. Stokes, 1 Salk. 1 16 ; 
1 Ld. Raym. 444 ; 2 New Rep. 148 ; 
Hindley v. Westmeath, 6 B. ft C. 
200 ; 9 Dow. ft Ry. 351 : Mizen r. 
Peck, 3 Mees. ft Wei. 481 : Reeve 
V. Marquis of Conyngham, 2 Car. ft 
K. 444. 



22. However, duch an allowance Will not exempt him 
from liabilities caused by hid own misconduct, (a) 

23. The allowance for maintenance must not be pre- 
carious (6), and it must be suitable to the husband^s fortune 
and rank in life, which is a question proper for the consider- 
ation of a jury ; and if it be found to be inadequate, the 
husband, as it seems, will not be discharged at law from 
his liability to answer for his wife's contracts for necessaries ; 
and her acquiescence in receipt of the allowance will not 
affect the rights of her creditors against him. (c) 

24. The payment of alimony, although insuflficient, will 
discharge the husband from such liability, (d) But the 
husband is liable for necessaries supplied to the wife before 
alimony is decreed, although the decree afterwards directs 
the alimony to commence from a day preceding the supply 
of the necessaries, (e) 

25. The maintenance must not only be adequate to the 
circumstances and condition in life of the husband, but as 
it was decided in Nurse v. Craig (/), the husband will not 
be discharged from his liability to her creditors unless it is 
duly paid; the averring of which payment is usual, and 
seems necessary in the declaration at law : and this will be 
lihe case where alimony has been decreed, (g) 

26. The case of Nurse v. Craig establishes by the 
opinion of three judges against that of Mansfield, C. J., that 
the mere covenant or contract of the husband to pay sepa- 
rate maintenance will not discharge him froih his obligation 
at law to support his wife, and that a creditor who has 
furnished her with necessaries may sustain an action against 
him for the payment of the debt. 

(a) Turner v. Rookes, 10 A. & E. {e) Keegan v. Smith, 5B.&C.375. 

47 ; 2 Perr. & Dav. 294. (/) 2 New Rep. C. P. 148. 153— 

{b) Thompson v, Harvej, 4 Burr. 156 : Hindley v. Westmeath, 6 B. & 

2177. C. 200 ; 9 Dow. k Ry. 351. 

(c) Hodgkinson v, Fletcher, 4 (g) Hunt v, De Blaquilre, 5 Bing. 

Camp. Rep. N. P. 70. 650 ; 3 Moo. & P. 108. 

(d)Willfion«.Sm7th,lB.J((Ad.801. 

c 2 



20 WHERE HUSBAND DISCHARGED BY PAYMENT 

27. The principle is thus stated by Mr. Justice Heath : 
" It is the duty of the husband to provide necessaries for 
his wife ; the question is, whether he discharges that duty 
by merely entering into a covenant with a trustee for pay- 
ment of an allowance. If he refuse to perform that cove- 
nant, the wife may be starved before redress can be obtained. 
The common law does not relieve any man from an obli- 
gation, on the mere ground of an agreement to do something 
else in the place, unless that agreement be performed." (a) 

28. For similar reasons it has been held, that the husband 
was not discharged from his liability for his wife's necessary 
expenses, by a separation deed assigning her property to 
trustees for her separate use, when it did not appear that the 
trustees had taken possession, {b) 

29. And since it is the payment of the allowance which 
discharges the husband, it is immaterial whether it be or be 
not secured by deed or writing, '{c) 

30. It seems that the payment of a separate maintenance, 
though it discharges the husband from the liability to his 
wife's debts, so far as it arises from his duty to maintain her, 
may still leave him open to the demands of persons dealing 
with the wife, under the supposition that she is still authorized 
by him to contract upon his credit. It being in general 
presumed that in the purchase of articles of necessity, the 
wife has the authority of the husband to contract as his 
agent, it follows that her contracts, like those of any other 
agent, will bind him until it be known that that authority 
has been withdrawn. Thus, in Rawlins v. Vandyke (d), the 
Avife lived upon a separate allowance ; but the husband had 
occasionally visited her, and paid bills for her. Lord Eldon 
ruled, that he was liable for goods furnished to her by a 
tradesman, not having notice of the allowance ; the notice of 

(a) See antcy p. 6. Camp. 70 : Holden v. Cope, 2 Car. & 

. (h) Burrett v. Booty, 8 Taunt. K. 437. 
343. (rf) 3 Esp. 250. 

(c) Iludgkinson v. Fletdier, 4 



OP ALLOWANCE ON SEPARATION. 21 

the allowance would be notice of the husband's dissent, (a) It 
is not, however, necessary to prove express notice ; the general 
notoriety of the fact, that the husband and wife are separated, 
is sufficient, (b) If the creditor has reason to know that the 
contract has been made without the husband's assent, his 
claim must depend upon the question, whether the husband 
is still bound to furnish his wife with necessaries. 

31. It has been seen that where the credit is given to the 
wife, the party trusting to her alone, the husband is not 
liable, (c) And on this principle it seems to follow, that, 
even if no separate allowance were paid, the husband might 
be discharged if it could be established to the satisfaction 
of the jury, that the dealing took place solely on the credit 
of the wife. 

32. In a case where the wife was living separately on an 
allowance, the husband, having promised to pay a debt con- 
tracted by her, was held liable, (d) 

(a) See ante^ p. 16. note; and (c) Ante, p, IS. 
Hinton v, Hudson, Freem. 248. (d) Hornbuckle v, Hornbury, 2 

(i) See Ozard r. Darnford, 1 Selw. Stark. 177: see also Harrison r, 
N. P. 294, 11th ed. : Mizen v. Peck, HaU, 1 Moody & Rob. 185. 
3 Mees. & Wei. 481 : see also Reeve 
V. Marquis of Conjngham, 2 Car. 
&K444. 



c 3 



22 



wife's devastavit before mabbuge. 



CHAPTER XXIII. 



OF THE LIABILITY OF THE HUSBAND OR WIFE FOR A DE- 
VA3TAVIT, WHERE THE WIFE 18 E^ECjUTBIX. 



SECTION L 



OF THE HUSBANDS LIApjLITY. 



1. Husband surviving not liable 

for devastavit by wife before 
marriage, 

2. Whether liable for devastavit 

by wife during tnarriage. 
4. Liable at law if he has con^ 
curred in devastavit. 



5. Ajid in equity. 

6. Cases collected in Adair Y, Shaw. 
14. dough T. ZH^on: husband^s es- 
tate held li($ble after his death* 

16. fVhat proceedings at law tpill 
fix ^usban4 offer wif^s dfioA 
with her depasfavU, 



1. If the wife before marriage, being an executrix or 
administratrix, wastes her testator's or intestate's assets, 
it seems that, except as administrator to his wife, and to 
the extent only of her assets, the husband surviving will not 
be liable in respect of the devastavit (a)^ because his liability 



(a) A devastavit is a personal 
tort, which, according to the maxims 
of the common law, moritur cum 
persona. Hence, if the person com- 
mitting it died before a compensation 
was recovered for the injury, the 
common law gave no damages out of 
the assets in satisfaction of the tort, 
Bailey v. Birtles, Sir T. Raym. 71. 
But where not only a tort is com- 
mittedy but property is acquired be- 



nefiting the deceased wrong-doer 
or his estate, it seems that an action, 
not founded upon the tort, but to re- 
cover the value of the property, will 
lie against his executor, Sherring- 
ton's case, Sav. 40 : Hambly v, Trott, 
Cowp. 371 : Perkinson v, Gilford, 
Cro. Car. 540. And now, by the 
3 & 4 W. 4. c. 42. sect 2, an action 
may be brought against the execu- 
tors for any injury committed by the 



wife's devastavit durdto mabriage. 23 

to the payment of such of her debts as were contracted 
previously to the marriage could only be enforced during 
the coverture. 

2. Where the devastavit has been committed by the wife 
during the misrriage, Mr. Roper (a) lays it down that the 
husband surviving will not be answerable at law, if he did 
not eoneur in the misapplication, and if he received no ad« 
vantage from it; for it was not his debt, and there is no 
legal form of proceeding by which he or his estate can be 
made subject to the demand ; and since he is discharged by 
l^e rule of law, the same rule will discharge him in equit}', 
there being nothing in either case to found the jurisdiction 
of either tribunal. 

3. " But," as Mr. Jacob observes (6), " the husband is gene- 
rally chargeable in ^equity for the acts of his wife as executrix 
or administratrix ; as she has no power to act alone, his 
assent will in general be presumed, {e) Hence, in Sander- 
son V. Crouch (rf), Sturt v. Harvey (e), and Adair v. Shaw (/), 
the husband's estate was made responsible for what had been 
received by himself or his wife during the coverture." 

A. If the husband had concurred with the wife in the 
devastavii committed during the marriage, and received the 
whole or part of the property misapplied, then it seems 
that he would, notwithstanding his wife's death, be liable 
even at law for the amount or value received by him ; for 
the principle of law is to create a charge wherever property 
bound to a particular duty comes to a person's hand, which 
he misapplies, and to give redress whenever its forms will 

deceased wrong-doer to apother in (a) 1 Rop. H. & W. 191. 
respect of his propertj, provided the {b) Ibid, 
injury had been committed within (c) See 1 Sch. & Lef. 266. 
six calendar months before the (d) SVern. 118. 
death of the wrong-doer, and the (e) Cited p. 27. infra. 
action is brought within six calendar (J') 1 Sch. & Lefroj, 243. 
months after the executors have 
taken upon themselves the adminis- 
tration of the estate. 

c 4 



24 WHERE HUSBAITD CONCUBS IN DEyASTAVIT. 

admit. And for such parts of the assets as may remain in 
his hands, or in the possession of his executors, at his death, 
in specie, an action of detinue or trover may be supported 
for the recovery of them. 

5. Whether, indeed, the forms of law could or could not 
be applied so as to afford a remedy in the case now under 
consideration, a Court of Equity will interfere, and charge 
the surviving husband or his estate in the hands of his 
executor, upon the principle that the misapplication of the 
husband was of trust property, and of his obligation by such 
trust to apply the funds received by him in discharge of 
debts and legacies, and the surplus according to the will of 
the wife's testator ; or if it were intestacy, then according to 
the statute of distribution. 

6. The cases establishing this head of equity are collected 
and commented upon by Lord Redesdale, in his elaborate 
judgment in Adair v. Shaw, (a) He there expressed his 
disapprobation of the report of Beynon v. GoUins (J), and 
afterwards proceeded to the examination of the other cases 
upon this point. 

7. He observed, that the first case which showed most 
clearly what Courts of Equity thought upon the subject of 
charging the husband upon his own devastavit of assets 
belonging to his wife, as administratrix or executrix, when 
she died leaving him the survivor, was Sanderson v. 
Crouch, (c) In that case a man married an administratrix, 
who had previously wasted part of the assets ; a biU was 
filed against them for a distribution, and she died. The 
Court declared that her husband was to be no farther 
charged than with what was possessed or came to his or to 
his wife's hands after their inter-marriage. By this declara- 
tion, the Court showed its understanding to be, that for the 



(o) 1 Sch. & Lefroy, 243. (c) 2 Vera. 118. 

lb) 2 Brown, C. C. 323 ; 2 Dick. 
697. 



DEVASTAVIT BY WIFE AND FIKST HUSBAND. 25 

waste committed by the wife before the marriage, her des^th 
absolved her husband, upon the principle before stated ; but 
for what came to both their hands after the marriage, her 
death did not discharge his liability to answer. 

8. In allusion to the case of Batchelor v. Bean (a), his 
Lordship observed, that it was decided but a year and a half 
before Sanderson v. Crouch; and that although it did not 
clearly appear what was the decision, yet that on comparing 
the two cases together it would be found that the same kind 
of determination was made in both of them. 

9. The next case which he considered was Norton v. 
Sprigg. (b) This, said his Lordship, was a very short and 
confused note. The question was on exceptions to the 
Master's report, how far a- second husband should be charged 
in his own estate for a devastavit committed by his wife and 
her first husband. The Court said, that where there was a 
bond there was a lien by deed, therefore the second hus- 
band was bound ; but that where there was merely a breach 
of trust or debt by simple contract, there in equity the 
plaintiff ought to follow the estate of the wife, in the hands 
of the executor of the first husband. Upon this declaration. 
Lord Redesdale observed, it was difficult to discover its 
exact meaning, but it seemed to import that the second 
husband should be relieved out of the assets of the first, viz. 
if the first husband possessed himself of assets of the tes- 
tator, then the second husband, who was chargeable with 
the wife's debts, was intitled to be relieved out of the estate 
of the first husband, he having possessed himself of that 
which was not given to him by the marriage, and of which 
he had no other right to possess himself than for the purpose 
of protecting himself against the demands of the testator's 
creditors, to which he was liable as the husband of the ad- 
ministratrix ; that it seemed there was a right in this case 
in the second husband to redeem, by following the assets of 

(a) 2 Vera. 61. {b) 1 Vera. 309. 



26 LUBiLmr of secohd hxjsbaicd 

the first husband to recoyer what had been received by him ; 
but that nothing could be inferred from tibue case, except 
that was the understanding of the Court, which might be 
guessed to have been so, from the note in 1 Equity Cases 
Abridged (a), referring to Gilpin v. Smith, which deter- 
mined, tibiat if there Wicre no assets of the first husband, the 
second husband must pay tiud debts of the wife ; hence im« 
plying that if there were assets of the first husband, the 
second was intitled to be relieved out of th^n. But his 
Lordship said that Gilpin v. Smith (b) did not warrant 
what was said of it. It was th^e held, that when a wife, 
after the death of her first husband, entered and took the 
profits (of lands settled for the pa3^ment of debts), and 
married again, and she and her second husband continued 
to take the profits, and he dying, she married a third husr 
band, who also continued to take the profits, such third 
husband was bound to answer not only for the profits 
received by himself and his wife, when sole, but also for 
what had been received by the second husband; that 
Maynard in argument said, that both in law and equity 
Smith and his wife were answerable for the profits taken by 
the wife, and afterwards by her second husband ; as if ¥rife 
tenant for life marry, and the husband commits waste, and 
dies, an action of waste lay against her. But Lord Redes* 
dale observed, that waste did not in that case lie at law 
against the executor of the husband ; yet according to the 
case of Sherrington and other cases, if the waste had been 
of a profitable nature, the assets of the second husband 
would have been answerable, and reasonably so, in relief of 
the wife and her third husband ; nevertheless the wife and 
third husband would be primd facte liable to creditors, upon 
which ground these cases went. 

10. The next case which came in review was Powell v. 
Bell (c). There an administratrix having wasted great part 

(a) Page 60, pi. 4. (c) 1 Eq. Ca. Abr. 61 ; Pre. Ch. 

(b) 1 Chanc. Ca. 80. 255. 



FOS DEYAffTAYiT BY mFB ANI) FIRST HUSBAITO. 27 

of the asgets before her second marriage, a suit was instituted 
for an account of the estate against her second husband after 
her death. By the decree an account was directed of what 
had come to her hands before her second marriage; and 
it was declared that the plaintiff should have satis&ction 
absolutely against the second husband, for so much as came 
to his hands, after marriage, and to have satisfaction against 
him for what came to her hands before the second marriage, 
ao far as he had any estate of the wife ; which Lord Redes- 
dale understood to mean, so far as the second husband had 
any estate in the character of her administrator. 

11. Upwell V. Halsey (a) was now considered by his 
Lordship. A gave personal property to his wife for life, and 
then to his sister, and appointed his wife executrix. She 
married Halsey, and died. It was decreed that Halsey should 
account for what came into his hands. In that case, the 
wife possessed the property, and retained the surplus as exe- 
cutrix ; she was a trustee to pay herseK the interest for life, 
and to preserve the capital for her first husband's sister. 
The second husband was decreed to account for so much as 
came to his hands, but was not made answerable for what his 
wife might have wasted before the marriage: it was con- 
sidered that the money being trust money, the marriage was 
not a gift of it to him ; and he was held bound by the same 
trust of it as his wife. 

12. The case of Pagett t;. Hoskins (b) proceeded upon the 
same principle. Any specific assets of the wife's testator 
may foe followed into the hands of the husband after her 
death, and so, as in that case, although not in specie, if the 
husband had notice that they were the goods of the testator. 

13. The last case noticed was Sturt v. Harvey, the decision 
in which Lord Redesdale considered as the course of the 
Court established in a number of cases. Harvey had 
married the mother of Mrs. Sturt. Mr. Sturt got a large 

(a) 1 P. W. 651. {b) Pre. Ch. 431. 



28 HUSBAND ONLY LIABLE DURING MABBIAQE* 

fortune with his wife, and filed a bill to obtain different pro- 
perties out of Harvey's hands. The cause was heard in 
February, 1771 ; and part of the decree was, that Harvey 
should account for such of the personal estate of his wife's 
former husband as had come to her hands before her marriage 
with him (Harvey), or to his own or his wife's hands since; 
and that he should be answerable for what had come to their 
or either of their hands since the marriage, and for what had 
come to her hands before, that he should be answerable out 
of her assets, if he admitted any ; and if he made no such ad- 
mission, then that an account of them should be taken. — The 
rule in Sanderson v. Crouch was here proceeded on, and the 
same kind of decree made. His Lordship said he was con- 
vinced, that from the manner in which the decree in Sturt v. 
Harvey was expressed, that it was considered as the settled 
rule in Chancery at that time. The principle is the same as 
in the other cases, that goods which a wife takes in aiitre 
droit are not given by the marriage to the husband ; but 
that he, in taking, holds them subject to the trust to which 
they were subject in the hands of the wife. 

14. In the late case of Clough v. Dixon (a), where ad- 
ministration had during the coverture been granted to the 
wife jointly with another person, the husband's estate was 
held liable for a devastavit, which he had committed by 
placing the fund to the joint account of himself and the co- 
administrator, who absconded with it after his death, and 
in the life of the wife surviving, who had been thus excluded 
by her husband from acquiring a control over the property. 

15. It has been before noticed, that the husband when 
he has not by his own acts made himself responsible, is 
only liable for his wife's devastavit whilst the marriage 
subsists between them, so that when it determines before a 
judgment or decree is obtained against them for the demand, 
his or his wife's death discharges his liability. 

(a) 8 Sim. 598 ; affirmed 3 M. & C. 490. 



PROCEEDINGS IN ACTION FOB DEVASTAVIT. 29 

16. As to what proceedings at law will fix the husband with 
his wife's devastavit after her death, Mr. Roper remarks (a) : 
" There is a peculiarity attending this demand, and the pro- 
ceedings to recover satisfaction for it, which it is necessary to 
consider, for the purpose of showing at what period of those 
proceedings the death of the wife will or will not at law exone- 
rate her husband from answering for her devastavit. An 
action to recover a debt owing by a testator can be brought 
only against the person standing in relation to the 
testator as his legal personal representative; that person, 
in the case now under consideration, is the wife, executrix 
or administratrix, and her husband is made a party pro 
formd. The first judgment is, that the debt shall be paid 
de bonis testatoris ; it affects only the testator's estate, and 
creates no personal liability in the husband to satisfy the 
demand. Upon this judgment the plaintiff may proceed at 
his election in one of two methods, either by suing 2k fieri 
facias de bonis testatoris directed to the sheriff, to which if 
he return nidla bona^ then upon a suggestion of a devastavit^ 
a scire fieri will be directed to him to levy the debt de bonis 
testatoris ; or if that cannot be done, then to inquire by a 
jury as to the commission of a devastavit; and if it be so 
found, then to summon the parties to appear in the Court 
above to show cause why execution de bonis propriis should 
not issue. If the sheriff return to this compound writ nulla 
bona, and a devastavit upon the inquest, and the fact of a 
devastavit having been committed be confirmed upon pro- 
ceedings above; then judgment de bonis propriis will be 
given, and although the wife happen to die after such judg- 
ment, and before any proceedings are had under it, yet her 
husband will remain chargeable, his liability having been 
fixed by the judgment de bonis propriis. (b) The other and 
more usual mode of proceeding upon the first or original 

(a) 1 Rop. H. & W. 202. 603 : Eyres v. Coward, 1 Sid. 337 : 

f^) Kings or Knights v. Hilton, Obrian r. Ram, 3 Mod. 189. 
1 Roll. Abr. 931, pi. 11 ; Cro. Car. 



80 PBOccEDmos m Acnoif fob devastavit. 

judgment is, by an action of debt upon it, miggesting a 
deedstamt; and which action either may or may not be 
brought after or without suing any Jieri faeias upon the 
first judgment, (a) If the wife die before judgment be ob- 
tained in this action, the husband will be discharged. The 
whote may be summed up thus : that no proceedings can 
be had either by action of debt upon a devastatnt^ or by a 
sdre fieri inquiry against the husband of an executrix, if 
she die after judgment against her and her husband de bonis 
testatoris ; but that if a general judgment be had against 
them either upon the scire fieri or in the action of debt, and 
then the wife dies, her husband will be bound, and must 
answer personally, (ft)" 

In Tyler v. Bell (c), where the husband having become 
liable, made the wife his executrix, and she possessed assets 
more than sufficient to satisfy the demands of the next of 
kin after payment of his debts, it was held that his estate 
was discharged, and that the next of kin could not sue his 
administrator cum testamento annexe. 

(a) Wheatlej v. Lane, Sid. 397 : (c) 2 M. & C. 89. As to the hufl- 
Skelton v. Hawling, 1 Wils. 268 : band's liabilitj for breaches of trust 
Erring v» Peters, 3 Term Rep. 685. committed bj his wife before mar- 

(b) Bacon v. Berkley, 1 Lutw. riage, see Waring r. Williams^ 3 
670: Mounson r. Bourn, Cro. Car. Beav. 227.' 

519. 



UABILITT WHEBE EXXCimm BEFOBE liCARBIAQE* 81 



SECTION II. 



OF THE WIFE'S LIABILITY. 



2. W^€ mrifwing Uahh wkere «a> 

eeuirix before marriage. 

3. Not where executrix during 

marriage, 

4. Effect of her consefHi to the ad- 

ministrati&n. 



6. Can be sued at law only by crc" 

ditors. 

7. Remedy for legatees in equity 

against wife. 

8. Adair y. Shaw. 

9. Opinion of Sir L. Shadweli. 



1. The husband's liability to answer for his wife's and his 
own devastavits of assets, which came to their hands in her 
right as executrix or administratrix, having been considered, 
her responsibility after his death, for waste of the assets 
committed before and subsequently to the marriage, is the 
next subject which presents itself. 

2. Where the wife is executrix before the marriage, if she/^^^^^^. 
survive her husband, it seems that she will be liable to 
answer not only for her own wrongful acts committed in the 
administration prteviously to the coverture, but even for those 
of her husband during the continuance of the marriage (a) ; 
because her title tis executrix or administratrix having 
commenced and become complete before the marriage, it was 
her own folly to take a husband who would so misconduct 
himself as to waste her testator's or intestate's assets. 

8. But where the wife is executrix or administratrix /^-^sve^p/a. 
after marriage, the act of the husband, in obtaining probate 
or letters of administration in his wife's name, if against or 
without her consent, and she does not afterwards intermeddle 
in the administration, is an act from which she may dissent 
after his death by renunciation, and avoid the consequences 



(a) Bellew r. Scott, 1 Stra. 440: 1 Sch. & Lef. 261. 



32 LIABILITY WHERE EXECUTBIZ DURING MARRIAGE. 

of his misconduct, (a) In allusion to this, the court of 
Common Pleas in Stokes v. Porter (6) said, "that some 
possession was colourable, yet none in law to charge, &c., 
as in the instance of a wife executrix who did not inter- 
meddle, &c., and renounced after her husband's death." 

4. However, Mr. Roper considers (c) that if the husband 
procure probate or letters of administration in his wife's 
name and with her consent, then she surviving him will 
be personally answerable, upon the insolvency of his estate, 
for the waste committed by him of her testator's or in- 
testate's assets; because she by her own act and assent 
having assumed the office of executrix or administratrix, 
and being the only legal personal representative of the 
testator or intestate (which distinguishes this case from that 
before mentioned, of the husband's discharge by her death 
from her devastavit^ he being neither executor nor adminis- 
trator), became liable with her husband for every act re- 
lating to it ; and an action or suit lay against both of them, 
and upon his death the right of action survived against her. 

5. Mr. Roper cites as authorities an anonymous case in 
Croke (d) (a case of trespass, where the husband died after 
verdict obtained against himself and wife), where the Court 
said, it was clear that if the husband survived his wife he 
was chargeable, and the reason was the same for charging 
her when she was the survivor ; and Rigley v. Lee (e)^ 
where a verdict in ejectment having been obtained against 
husband and wife, he died before the day in banco ; and the 
Court held that there was no abatement, because the action 
was in the nature of trespass, and the wife was charged for 
her own factj therefore, that the action continued against 
her, and the judgment should be entered against her sole. 

6. But at law these liabilities can be enforced only at the 

(o) Wentw. Off. Ex. chap. 17, p. (d) Cro. Car. 509. 
206. (e) Cro. Jac. 366 : and see Hor- 

(b) Dyer 166^. sey v. Daniel, 2 Lev. 161. 

(c) 1 Rop. H. & W. 197. 



RIGHT OF LEGATEES TO KELIEP IN EQUITY. 33 

suit of creditors, because legatees cannot maintain an action 
against an executor or administrator (a), their relief being 
only in a Court of Equity or in the Ecclesiastical Court. 

7. Upon the right of legatees under these circumstances to 
relief in equity, Mr. Roper observes (ft) : " Although legatees 
be without remedy in Courts of Law, yet Courts of Equity 
will interfere in their behalf against the husband of a feme- 
executrix or administratrix, who has applied the assets to 
his own use; but whether these Courts will assist them 
against the surviving wife, to make her responsible for the 
devastavit of her husband or of herself during the marriage, 
b not, I believe, settled by any express adjudication. The 
answer given to legatees in Courts of Law is, we will not in- 
terfere for,you ; there is a more competent jurisdiction for the 
administration of assets, a Court of Equity, to which we refer 
you. This is the reason why a legatee cannot maintain an 
action at law. It is not because he has no right nor title ; 
but hig right or title is referred to another court, which 
from its constitution and forms can more effectually ad- 
minister justice in a case which is connected with the account 
and administration of assets, than the forms of a Court of 
common law allow. The objection, therefore, that because 
a legatee cannot recover against the surviving wife at law, 
he ought to have no relief in equity, is untenable. Upon 
what principle of justice, then, does the claim of a legatee 
stand to compel the surviving wife to answer his demand 
on account of a devastavit committed either by herself or 
her husband during the marriage ? It is foimded upon the 
equity of the legatee to be paid out of assets belonging to 
the testator, which, in breach of the trust that the law con- 
fided to the wife, have been either wasted by her, the sole 
and proper legal personal representative, or by her husband, 
whom she, by her own act and consent in taking that office, 
empowered to commit the devastavit Since at law, there- 

(a) Deekes v. Strutt, 5 Term Rep. 690. (6) 1 Rop. H. & W. 199- 

VOL. n. D 



34 BIGHT OF LEGATEES TO BBLtBF W EQUITT 

fore, as it seems, the right of action by creditors survived 
against her, so in equity, it would alio seem, the equitable 
demand of the legatee also survived.^' 

8. Lord Redesdale expressed a strong opinion in favour 
of legatees in the case of Adair v. Shaw (a), which has been 
before referred to. In that case, Crymble the elder, by a sixth 
codicil, bequeathed his residuary personal estate to trustees, 
to be invested in the purchase of lands, to be settled to such 
uses and upon such trusts as certain estates in the counties of 
Antrim and Carrickfergus were expressed by the codicil to 
have been devised and limited by his will to Charles Crymble 
the younger and his issue in tail male, but in fact to Charles 
for life, and to his first and other son and sons in succession 
in tail male; with remainder in like manner to William 
Crymble and his sons ; with remidnder to Charles Adair for 
life, and to his sons successively in tail male, &c. The 
trustees and executors named in the will declined to act, and 
administration pendente lite was granted to the defendant 
Mrs. Shaw, mother of the first tenant for life, and then the 
wife of F. Shaw. Prior to this grant, a suit had been in- 
stituted in the Ecclesiastical Court for administration, and 
a bill had been filed in equity to preserve the property in 
the mean time. These suits were discontinued^ and a comr 
promise made between Shaw and wife and Crymble the 
younger ; and they paid to him the whole residuary personal 
estate. By the deaths of Charles and William Crymble 
without heritable issue, the right to the remainder in the 
lands to be purchased with the residue became vested in 
Charles Adair for life (who also became the testator^s legal 
personal representative), with remainder to his eldest son 
Thomas Adair in tail male. They filed a bill against Shaw 
and wife and others, to have the residue invested under the 
will and codicil, he and they having compromised a jsuit 
which had been commenced by hun for the same purpose. 

(a) 1 Sch. & Lef. 243. 



K>B A BXYASTAVrr. 85 

Mr. and Mrs. Shaw admitted that she had received assets to 
the amount of 10,0002. and that she had paid to Charles 
Crymble the clear residue, under the impression that he was 
intitled to it, she having been advised, that if it had been 
laid out in the purchase of lands he would have had complete 
dominion over it. Her husband F. Shaw then died, and the 
suit was revived against his executors, charging him with a 
devastavity and that his assets were liable to the demand in 
respect of it ; but his executors insisted that Mrs. Shaw 
alone administered^ and that her husband being only liable 
to her debts during the marriage, and no judgment or decree 
had been obtained against him during its continuance, his 
assets were not liable. LorA Redesdale held that Mrs. Shaw 
in paying legacies and disposing of the residue, exceeded her 
power under the letters of administration pendente lite ; they 
merely authorising her to collect the assets and to pay the 
debts : that she was responsible, and her husband's assets 
also, to this extent, viz. she for the whole, and her husband's 
assets for whatever came to the hands of himself or wife 
during {he marriage, except so £sLr as he left assets in specie 
at his death which might have come to his wife's hands, and 
that for what might have been so leffc he would not be an- 
swerable, but his wife only; that the personal demand 
against the surviving wife was a necessary consequence of 
the acts in which she concurred, and that at law she would 
be responsible to the creditors of her testator, although not 
to the residuary legatees, for the reason before mentioned. 
By the decree it was declared (amongst other matters, after 
giving the usual directions), that whatever assets of the 
testator Crymble came to Mrs. Shaw's hands after her hus- 
band's death should be answered by her ; and that whatever 
came to his executors' hands should be answered by them ; 
and that if any of the original testator's assets remained in 
specie in the husband's hands at his death, which came to 
the possession of his executors, they were to account for 
them, answering personally for their own receipts, and for 

D 2 



36 BIGHT OF CBEDITORS TO RELIEF IN EQUITT. 

tteir testator's receipts out of his assets ; andfiirther directions 
were reserved in regard to Mrs. Shaw, if her husband's per- 
sonal estate should be insufficient to pay what was due from 
it. The result was, that Mr. Shaw's assets were greatly 
deficient to pay what was found due from him on account of 
his and his wife's receipts of the testator's estate. The 
residuary legatees therefore applied to the Court for a per- 
sonal decree against Mrs. Shaw for payment of the amount 
of the deficiency ; but no order was made upon it, as the 
plaintiiFs seemed disposed not to press their claims against 
her. On that occasion Lord Redesdale said, that as to cre- 
ditors the wife would be clearly responsible, and that the 
inclination of his mind was to hold her responsible in this 
case also ; since, although under the control of her husband, 
her taking out administration was nevertheless a voluntary 
act, which she might have refused to have done. 

9. However, in the case of Clough v. Dixon, which has 
been before cited (a). Sir L. Shadwell, V. C, considered it 
very doubtful whether the wife was responsible to the next 
of kin for her husband's devastavit^ and, alluding to Adair 
V. Shaw, added, "I do not think that the reasoning of 
Lord Redesdale is satisfactory, where he says that a married 
woman, an executrix, would be responsible to the creditors 
of the testator after the coverture, for a devastavit committed 
by her husband during the coverture." 

(a) Page 28, anti. 



WHY DISABnJTIES OF COVERTUBE CBEATED. 



37 



CHAPTER XXIV. 

OF THE DISABILITIES OF COVERTURE, AND THE EXCEPTION 

TO THEM. 



SECTION L 



OF THE DISABILITIES OF COVERTURE. 



1. DisahtUties of coverture why 

created by law. 

2. Where deeds by wife are void, 
3.1 Where deed delivered as es- 

4. J crow by wife is void . 

5. Husband by disclaimer may 

give effect to wtfe*s deed 

6. Wife may purchase estate sub* 

jeei to husbands disagreement 

7. But after his deathy she or her 

heirs may disaffirm purchase, 

8. What will be confirmation by 

wife after husbands death* 

9. If husband disagrees^ he may 

recover purchase-^noney, 
10. Effect of bond to wife where 
husband disagrees. 



IL Wife's wiU void, 

12. Exceptions, 

13. Wife without husbands concur- 

rence unable to contract 

15. Or receive money, 

16. But may act as husbands agent 

or attorney, 
18. Unahle to release debts^ or give 
or negociate security, 

21. Unless as husbands agent 

22. Presumption that she is AtM- 

bands agent, 

24. Unable to act as executrix with- 

out husbands concurrence, 

25. Cannot in general be witness for 

or against husband, 

26. Exceptions, 



1. The disabilities to which the wife becomes subject on 
marriage are created by policy of law, for two reasons ; first, 
to prevent, so far as is possible, the regard which the wife 
is supposed to entertain for her husband, and his influence 
over her, from stripping her of all her property during the 
marriage ; and, secondly, to exempt the husband from 
liability in respect of her acts and engagements to which he 
was not privy and consenting ; for if she, who of the two is 
reasonably presumed to be the most exposed to imposition, 

D 3 



L. 



88 WHERE wife's DEEDS VOID* 

were allowed to bind the husband by her sole acts, the con- 
sequences might prove ruinous to both of them and their 
family. 

2. Accordingly, it is a general rule, the exceptions to 
which will be noticed in the ensuing section, that the deeds 
of married women are void, (a) 

3. If, therefore, a married woman execute and deliver a 
deed to a person as an escrow, and the husband die, and 
then the grantee perform the condition^ upon which the 
person to whom the deed was delivered gives it to the 
grantee as the woman^s deed, it is void (5) ; because the 
instrument receives its inception from the first delivery, and 
its completion upon performance of the condition ; and the 
second delivery is merely the execution and consummation 
of the first (c)^ so that the grantor or donor being under 
the disability of coverture at the time of the first delivery of 
the deed, the subsequent death of the husband, before the 
compliance of the grantee or donee with the terms of it^ will 
not remedy the original defect. 

4. But if the wife had been single at the period of the 
first delivery, and afterwards, but before the grantee or 
donee complied with the conditions upon which it was to be 
his deed, had taken a husband, the marriage would not 
defeat the deed ; for the instrument, commencing in effect 
fi'om the first delivery, amounted by relation to the deed of 
a feme sole, {d) 

5. However, the husband may, by his disclaimer, give 
effect to a deed executed by his wife, {e) 

6. And the wife is a person by law enabled either to 
purchase or accept an estate; which, subject to the ap- 
proval or disagreement of her husband, vests in her in 
the mean time. (/) 

(a) Perk, sect 6: 2 Wils. 3:2 (d) Peik. sectQ. 

Saund.21d: 2Freem.218. (e) Bjcroft r. Christie, 3 Beav. 

{b) Perk. sect. 11. 240. 

(c) 5 Sep. 84i : 1 Yes. Jun. 275. (/) Co. Litt 3 a. 



Wnm XnHABLB TO MAKB WILL. 39 

7« However, after her husband's death, she, if she survive 
him, or if she make no election and die before him, her 
heirs, may disaffim the purchase, (a) 

8. If the wife, after her husband's death, enter upon the 
estate made to her during the marriage, and take the profits, 
that will be an assent and confirmation, (b) 

9. If the wife purchase an estate without her husband's 
knowledge, and he afterwards disagree to it, he may 
recover the purdiase-money from the vend» in an action of 
trov^. (e) 

10. It is laid down, that if a bond foe made to the wife, 
and the husband disagrees, the obligor may plead nan est 
factum; for, by the refusal^ the bond lost its force, and 
became no deed, (d) 

11. The wife is aiso disabled by the oommon law fi^m 
making a will. By sec. 14. of the <dd Will Act (^), it is 
provided that wills or testaments made by wom^i covert 
shall not be good or effectual in law. This clause, as 
Mr. Jarman observes (/), did not create any disability that 
was unknown to the common law : but seems to have heen 
dictated by an apprehension that the general terms of liie 
prior act of the 32nd year of the same reign might possibly 
have had the effect of removing pre-existing disabilities, 
according to the construction given to the nearly ccmtanpo* 
rary statute of Jointures, {g) By the present Will Act (A), 
it is provided that no wUl made by any married woman shall 
be valid^ except such a will as she might have made before 
the passing of the act. 

12. Where, however, the husband has been banished for 
life by act of Parliament, the wife may dispose by will of 
her property ; for, as he iB dviUy defunct, she is restcwsd to 



(a) Co. Litt do. (e) 34 & 36 Hen. 8. c 5, expla 

(b) 3 Bep. 26 a. natorjr of the 32 Hen. 8. c 1. 

(c) Granby v. AUen, 1 LA Baym. (/) 1 Jar. Wills, 28. 
224 ; Comberb. 450. (g) 27 Hen. 8. c 4. 

{d) Whelpdale'8 case, 5 Bep. 1 19 &. (A) 1 Vic. c. 2a sec. 8. 

n 4 



40 



WIPE T7KABLE TO CONTRACTT 



the powers of a feme sole, (a) And where a felon is trans- 
ported for a definite term of years, his marital rights (and 
therefore, it should seem, his wife's conjugal disabilities) are 
suspended for that period, (b) 

The other exceptions to the rule that the will of a 
married woman is void, will be noticed in the ensuing 
section. 

13. The wife is also, with certain exceptions, which will 
be hereafter noticed (c), disabled by law from contracting 
so as to bind her person ; nor can she, with such exceptions^ 
sue or be impleaded without him. (d) 

14. In what cases the husband will be liable for contracts 
or debts made or incurred by his wife, has been already con- 
sidered, (e) 

15. With the same view, namely, for the husband's, pro- 
tection, the law incapacitates the wife to receive or dispose 
of money without his concurrence. Accordingly, payment 
of a legacy bequeathed to her generally, and not given to 
her separate use, will be a void payment as to her hus- 
band (/) ; and the law is the same in regard to rent, 
&c.(g) 

16. But the wife may act as her husband's agent or attor- 
ney. If, therefore, he authorise her to receive and pay 
money, or if she be accustomed so to do with his permission 
(which is an implied authority), he will be bound by 
such her acts, (h) 

17. So, also, if the husband desire money to be lent to 



(a) Portland' v. Prodgers, 2 Vem. 
104. 

(b) 1 Jar. Wills, 34. 

(c) Sect. 6, infra. 

(d) Marshall v. Button, 8 T. B. 
645. 

(e) Chap. 22, suprh, 

(/) Palmer v, Trevor, 1 Vem. 
261 : Moses v. Levi, 3 Y. & C. Eq. 
Ex. 359 : Non-is v. Hemingway, 1 
Hngg. Eccl. R. 5. 



{g) 2 Wils. 3 : Tracy v. Button, 
Pahn. 206. 

(A) Palm. 206: Seaborne ©.Black- 
stone, 2 Freem. 178 : Wynne v. 
Wynne, 4 Man. & G. 263. On a plea 
of payment to the wife, her authority 
to receive should be stated, Offley v. 
Clay, 2 Man. & G. 173 ; 9 Jur. 1203. 



OB RECEIVE OR DISPOSE OF MONET. 41 

his wife, payment of it to her will bind him ; and he will be 
liable to make satisfaction to the creditor in an action of 
assumpsit (a) ; because this amounts to an express contract 
by the husband to pay the money, and an assent that the 
wife should receive it. 

18. The law, for the like reasons, disables the wife, 
without her husband, to suspend, alter, or release any debt 
ittade payable to herself generally, or to give, indorse, 
or assign a promissory note or other security. • 
^ 19. Thus, in Rawlinson v. Stone (A), Dennison, J., said, 
that if a note of hand were made payable to a single woman, 
who afterwards married, she could not indorse and assign 
it ; and he cited a case of Connor v: Martin (c), of which 
he had taken a note : it was an action by the indorsee of a 
promissory note payabkto Susan Connor, or her order, and 
given to her before marriage, and which, after marriage, she 
indorsed to the plaintiff. The defendant pleaded that Susan 
was married at the time of making the indorsement. The 
plaintiff demurred, and the question was whether the plain- 
tiff could maintain the action upon the note indorsed 
by a married woman ? The whole Court were of opinion 
that the wife could not assign the note, because by the 
act of law it became the sole right and property of the 
husband. 

20. And in Brown v. Benson (a), the defendant and 
another person gave a bond to the plaintiff (the husband) 
conditioned to pay to his wife an annuity of 26^. quarterly for 
eleven years. The plaintiff being in embarrassed circum- 
stances, left this country shortly after the date of the bond ; 
and the obligors having advanced on his account money to 
the amount of 251. 5^., they, during the husband's absence, 
agreed with his wife, that she should give up five years' 
annuity, and consider it as paid for that period in satisfaction 

(a) Stephenson v. Hardy, 3 Wils. (c) In C. P. Easter, 8 Geo. 1. 
388. Id) 3 East, 331. 

<^) 8 Wils. Rep. 5. 



42 



WHEBB WIFE AGENT FOB HU8BAKD. 



of the advancements ; and she signed a receipt accordingly. 
The jury found that the advancements were made for a debt 
of the plaintiff, and for his benefit. The question waSf 
whether this agreement between the wife and the obligors 
was binding upon the husband? and th^ Court held in 
the negative ; because the bond had no further operation 
than to give the wife an authority to receive the pay* 
ments as they became due, which she could not transfer 
nor anticipate^ 

21. If, however, the wife be accustomed to sign instruments 
for her husband, or with his permission, it seems that the 
law (as before mentioned) will presume that she acted as hi» 
agent in other similar cases ; and then such acts will bind 
him* (a) 

22« But the presumption wiH not be raised by l^e fict 
that the money has been applied in payment of the husband's 
debts, (b) 

23. It need scarcely be noticed that where the husband's 
authority is distinctly proved, the wife's acts in signsng in* 
struments will bind Mm. (c) 

24. Upon the same principle of protection to the husband 
and wife, she is not permitted, as we have seen (df), to take 
upon herself tiie office and responsibility of an executrLs 
or administratrix without her husband's concurrence. 

25. It may be here observed that the wife is in general 
debarred from being a witness for or against her husband at 
law (e) ; and the same general rule prevails in equity. (/) 

26* There are, however, exceptions to this rule at laW; where. 



(a) Bowyer t. Feake^ 2 fVeem. 
215 : see Cotes v. Davis, 1 Campb. 
485 : Barlow v. Bishop, 1 East, 434 : 
Scarpellini v. Aeheson, 7 Q. B. 864 ; 
9 Jnr. 828. 

(b) Goldstone v. Toovey, 6 Bing. 
N. C. 99. 

(o) Firestwick v. Marshall, 7 Bing. 
765 ; 5 Moo. ft P. 573 : 4 Car. k 



P. 594: Tfince v. Bronatte, 1 ffisg. 
N. C. 435 5 3 Dowl. P. C. 382 : lia- 
dus V. Bradwell, 12 Jur. 230. 

(d) An£i, voL 1. p. 40. 

(e) See 1 Phillips on EyideaoOi 
chap. 5. sect 3. 9th ed* 

(/) Le Tesier v. ihe Maxgra^e of 
Anspach, 5 Yes. 322 ; 15 Yes. 159 : 
Barron v. Grillard, 8 Y. & B. 165. 



wife's evidencb fob OS aoahtbt busbakd. 43 

from the nature of the inquiry, the nature of the information 
to be expected is peculiarly within the knowledge of the 
wife, and where to exclude such evidence would occasion in- 
security to that relation in society which it is the object of 
the rule to protect. And in equity the wife's affidavits may 
in some cases be used against the husband. 



44 



EFFECT OF FIlflE OR BECOVEBT 



SECTION n. 

BY WHAT MODES THE WIFE IS ALLOWED TO DISPOSE OF HEE 

PROPERTY. 



2. Wif^s conveyance under old 
law by fine or recovery, 

4« Contingent interests barred by 
fine. 

5. Declaration of uses by wife 

alone void. 

6. By husband alone whether valid 

7. Where declarations of uses by 

husband and wife different. 

8. Effect of fine by wife alone. 

9. Where wife permitted to levy 

fine as feme sole. 

10. Wife now enabled by S ^ 4 

JV. 4. c. 74. to convey by deed 

11. But husband mtist concur^ and 

deed must be acknowledged. 

12. Where act applies to copyholds. 

13. Wife before (zcknowledgentent 

must be separately examined. 

14. Where husbands concurrence 

dispensed with. 

17. Solemnities on purchase of wif^s 

estate by authority of parlia- 
ment 

18. Wife may convey contingent 

and future interests, and rights 
of entry. 

19. And may disclaim by deed. 

20. Her conveyances by special 

custom. 

21. Wife with husband may sur^ 

render copyholds. 

22. Or alone with husbands assent 

by special custom. 



23. Presumption of husbands assent 

24. Where custom requires hus- 

bands assent to be expressed 
on the surrender. 

25. Custom to surrender wi^oui 
husbands assent bad 

26. Compton y. CoUinson. 

27. Mr. Jacobus remarks thereon, 

28. Where husbands concurrence 

dispensed with under S ^ 4 
W. 4. c. 74. 

29. Whether wife can appoint at' 

tomey to surrender. 

30. Whether surrender to use qf 

wife's will necessary. 

31. Wif^s separate examination 

how taken, 

32. Surrenders of equitable estates 

valid under 3 4* 4 W.A.c. 74. 

33. Wifis power of renewing lease- 

holds under 11 (7.4.4-1 W.4. 
c. 65. 

34. Unable to dispose of her rever- 

sionary personal estate by her 
consent in court. 
85. But her consent sometimes taken 
to declare her election. 

36. May elect to take money to be 

invested in land, as money. 

37. Where lands purchased to be 

settled upon her in taiL 

38. May execute power, or make 

will by husbands permission. 



1. Tub wife is not. wholly precluded from disposing of her 
real estates during the marriage. 



LEVIED OR SUFFERED BT WIFE. 45 

2. Although the old law protected the wife during the 
coverture, so as to invalidate the alienation of her property 
by private conveyances, unsupported by any particular 
custom, yet it permitted her to convey her real estates, 
whether legal (a) or equitable (&), by a fine or by a common 
recovery (c), in consequence of the solemnity with which 
these assurances were attended. By either of these modes 
of assurance, she had the same power over her property as 
if she had become a feme sole, (d) 

3. Fines and recoveries are now abolished {e) ; yet it 
may still be useful to notice the following points in relation 
to them. 

4. The fine of a married women had the effect of binding 
her contingent interest by estoppel. (/) 

5. It was necessary that the declaration of the uses of a 
fine or recovery levied or suffered by husband and wife 
should be made by them jointly. If made by the wife alone, 
it was void, (g) 

6. But if a declaration of uses was made by the husband 
alone, either before or after the fine or recovery, the wife's 
agreement was presumed, unless the contrary appeared by 
some manifest signs of her dissent; and this presumed 
assent would give it validity. (A) Her dissent might have 
been evinced by acts in pais, as by refusing to join in the 
declaration of uses executed by her husband (i), or by her 
declaring other uses. But to render the husband's declara- 
tion of uses ineffectual, it seems that it was necessary to 

(a) 1 Roll Ab. 347. (ff) Johneon v. CJotton, Skin. 275. 

lb) Forrest, 41 : TuU v. Owen, 1 (A) Beckwith's case, 2 Co. 56 : 

Y. & C. Eq. Ex. 196. Lusher v. Banbong, Dy. 290 a: 

(e) 10 Co. 43 a : Indedon v. Swanton v. Raven, 3 Atk. 105 ; Gilb. 

Northoote, 3 Atk. 480. Uses, 40 ; Owen, 6. 

(d) CottereU v. Homer, 13 Sim. (i) Webb v. Worfleld, 22 Vin. 

512; 7 Jur.544. Ab. 232. 

{e) By 3 & 4 W. 4. c. 74. 

(/) Helps V. Hereford, 2 B. & 
Aid. 242. 



46 



raOB LEVIBD BT WIFE ALOIVB* 



show that she did not agree to it at the time, and therefore 
her dissent^ declared sometime afterwards^ and after his 
death, was not sufficient to avoid it. (a) 

7. When the husband and wife made declarations of uses 
which were entirely different, both were void (6), excepting 
that the husband's interest was bound by that which he had 
made, (c) If their declarations of uses differed as to the 
first limitations, but agreed as to those in remainder, both 
were void {d)y though it has been suggested that the ulterior 
limitations might take effect as springing uses, (e) If they 
agreed as to part of the land, they were good as to that 
part (f) ; and Mr. Jacob considers (g) that it would 
perhaps be held by analogy, that if they agree as to the first 
uses, but diflEer as to the subsequent limitations, they would 
be good, so £Eur as they coincide, though this point does not 
appear to have been decided, (k) 

8. The wife was not competent to levy a fine without the 
concurrence of her husband, and therefore if it appeared by 
the record of a fine that it was levied by a married woman 
alone, it was voidable for error in the record, and would not 
bind her or her heirs, (i) But if she had levied a fine as a 
feme sole, not disclosing the &ct of her coverture on the 
record, and the fine was not avoided by the husband, it was 
binding on her and her heirs^ as they were estopped from 
averring against the record, that she was a feme covert. (£) 
The husband might, however, during the coverture, defeat 



(a) Dyer, 290 : 8 Atk. 106 i see 
Preston on ConTeyanemg, vol. 1. 
p. 314. 

(b) 2 Co. 67. 

(c) Moor, 196 : Gilb. Uses, 40. 

(d) 2 Co. 58. 

(e) Preston. Conv. voL 1. 17. 
(/) 2 Co. 58. 

(g) 1 Rop. H. k W. 141. 
{h) See Pres. Conv. 314: GUb. 
Uses, by Sugden, 41 n. 



(0 1 Sid. 122 : 1 Taunt 38. 

(k) Hob. 225: 2 B. C. C. 388. 
In Compton v. ColHnson, 1 H. BL 
343, it was denied that the fine in 
this case operates by estoppd, but it 
was not considered, as Mr. Jacob 
notices (1 Bop. H. & W. 142 n), that 
the fine owes its effect to the mis- 
statement on tiie record, which the 
wife and her heirs are not at liberty 
to set right 



^^ivb's conveyances tiNDSB 8 & 4 w. 4. c. 74. 47 



the fine thus levied; it was then avoided in totOj and the 
former uses restored* 

If the husband was intitled to be tenant by the curtesy, 
he might also have entered after the wife's death (a) ; but 
in this case it is said that the fine was only avoided to the 
extent of his interest, (b) 

9. In some instances married women were, under par- 
ticular circumstances, permitted to levy fines alone, as if 
unmarried. In these cases the Court did not make any 
order to sanction or give validity to the fine, but it was left 
open to the husband to defeat it. (c) 

10. But fines and recoveries were abolished by the 
3 & 4 W. 4. c. 74. The 77th section of this act enables 
the wife in every case, (except where she is tenant in tail, 
for which provision is made by the 40th section,) by deed 
to dispose of lands, and money subject to be invested in the 
purchase of lands, and also to dispose of, release, surrender, 
or extinguish any estate (d) which she alone, or she and 
her husband in her right, may have in any lands, or in any 
such money ; and also to release or extinguish any power 
relating to lands or such money. 

11. The husband is, however, required to concur in the^jf^ 
deed, which must be acknowledged by the wife as therein- *^ ^ 
after directed. 

12. The act is not to extend to copyholds where the 
objects to be effected by the 77th section could previously 
have been effected by a surrender. 

13* Provision is made in ensuing sections of the acts for 



fr 



(a) Shep. Touch. 7. 

(b) 1 Prest Convey. 255 : 
Vin. Ab. Fine, T. pi, 4. 10. 

(c) Moreau s case, 2 BL 1205 : 
Stead V. Izard, 1 N. B. dJ2 : ex parte 
vAIney, 1 Taunt. 37 : ex parte St. 
George, 8 Taunt 590 : IFtest Con- 
vey. 254. 

(d) By the first section of the act 



the word estate is to extend to an 
estate in equity as well as at law, 
and also to any interest, charge, lien, 
or incumbrance in, upon, or affect- 
ing lands at law or in equity, and 
also to any interest, charge, lien, or 
incumbrance in, upon, or affecting 
money subject to be invested in 
land. 



48 WHEBE dUSBAKD^S CONCUKBENCE DISPENSED WITH. 

the acknowledgment of the deed by the wife (a), who before 
her acknowledgment is taken is to be separately examined as 
to her consent to it, without which it wiU be void. (6) 

14. The Court of Common Pleas is authorised to dispense 
with the husband's concurrence in certain cases, (c) This 
has been done where he was a lunatic (e2), where he had 
absconded and his residence was unknown to his wife (^), 
where he had absconded after committing an act of bank- 
ruptcy (/), where he had resided for more than twenty 
years with another woman (g)y and where the parties were 
living separate by mutual consent, and the husband had re^ . 
fused to join unless part of the purchase-money was paid to 
him. (A) 

15. But the husband's concurrence will not be dispensed 
with where his absence is only temporary, (i) And where 
the husband was abroad^ and had not been heard of for 
two years, it being stated by the wife in her affidavit that 
she believed he would never return, the application was rer 
fused, (k) 



(a) Sect. 7d — 89 : see as to these 
provisions, and the decisions which 
have been made thereon, -^PP- No. 
10. 

(b) Sect. SO. 

(c) Sect. 91 ; as to the form of 
the rule to dispense with the hus- 
band's concurrence, see ex parte 
Duffill, 5 Man. & G. 378 ; 6 Scott, 
N. B. 63. An affidavit is required to 
be made bj the wife, see re Bruce, 
8 Scott, N. R. 693 ; 9 DowL P. C. 
840 : re WiUiams, 1 Man. k 6. 881 ; 
2 Scott, N. R. 120 ; 9 Dowl. P. C. 
72: re Horsfall, 3 Man. & G. 132 ; 10 
Law J. N. S. C. P. 292 : re Noy, 7 
Scott, N. R. 434; As to what affi- 
davit is sufficient when the wife is 
residing abroad, see in re Schiff, 1 
Dowl. &L. P.C.911. 

{d) Ex parte Thomas, 4 Moo. & 



S. 331 : see in re Turner, 3 C. B. 
166. But where the wife was living 
apart from the husband, who was in 
a state of mind which rendered it 
difficult to procure his concurrence, 
the court required that previous ap- 
plication should be made to him. 

Mirfin to , 4 Man. & G. 635 ; 

S. C, re Murphj, 5 Scott, N. R. 166. 

{e) Ex parte Shuttleworth, 4 
Moo. & S, SSln; ex parte Stone, 9 
DowL P. C. 843 : Anon. 2 Jur. 945. 

(/) Ex parte Gill, 1 Bing. N. C. 
168. 

{g) Ex parte Shirley, 5 Bing. N. 
C. 226 ; 7 Scott, 174 ; 7 Dowl. P. 
C.250; 3 Jur. 124. 

(h) In re Woodcock, 1 C. B. 437. 

(0 Ex parte Gilmore, 3 C. B. 967. 

(k) In re Smith, 16 Law J. N. S. 
C. P. 168. 



CONVEYANCES BY WIFE. 49 

16. In these cases the Court gives the parties general au- 
thority to convey, and will not sanction particular forms of 
conveyance, (a) 

17. It seems that where a statute authorises the purchase 
of lands in which the wife has an interest, and the Court has 
power to distribute the money among the parties intitled, 
the exercise of such authority by the Court is in lieu of 
the solemnities ordinarily required for the conveyance of 
the wife's real property on a payment of her money out of 
Court, (b) 

18. It is questionable whether a married woman was en- 
abled to convey her contingent interests under the 7 & 8 
Vic. c. 76. (c) But this act was repealed by the 8 & 9 Vic. 
c. 106, which enables married women, by deed executed ac- 
cording to the provisions of the fines and recoveries act, to 
dispose of contingent, executory, and future interests, and 
possibilities coupled with an interest, and also rights of 
entry, (d) 

19. It has been considered doubtful whether the fines and 
recoveries act enabled the wife, if she was a trustee, to dis- 
claim, (e) But now, by the 8 & 9 Vic. c. 106 (/), an estate 
or interest in any tenements or hereditaments in Englan 
may be disclaimed by a married woman, by deed exe- 
cuted according to the provisions of the fines and recoveries 
act. 

20. By immemorial custom prevailing in particular places, 
a bargain and sale, &c. by the husband and wife, when she 
is examined according to such custom, will bind her and those 
claiming under her ; such conveyances were equivalent to a 



(a) In re VToodall, 3 C. B. 639. (d) Sect 6. 

(6) JSa;jpartoElliaoDyiii reTrinitj {e) See Cruises Digest, 4th ed. 

House Corporation Act^ 2 T. & C. by Whiter vol. 7, p. 13, and voL 4. 

£q. Ex. 628. p. 19. 

(c) See Neale on the Real Property (/) Sect. 7. 
Actsof 1845, p.60. 

VOL. II. E 



50 wife's power of disposing 

fine (a)y and dre protected by an act of parliamept passed 
in 34 Hen. 8. (f>) 

21. A surrender by the husband and wife of Qopyholdil 
when she is duly examined wiU bind her and her heirs/(c) 

22. It seems that a special custom will authorise a surren- 
der by the wife alone with the assent of the husband, {d) 

23. In Seaman v. Mawe (e)y although there was no such 
special custom, a surrender by the wife alone to the use of 
her husband '\vas supported, the wife having been separately 
examined, and the husband's assent being presumed from his 
presence in Court and immediate admission. 

24. It seems that a custom requiring that the husband's 
consent should be expressed on the surrender would be good, 
and that where the custom requires the husband's consent, it 
will not be restricted to cases where he has no interest in the 
estate- (/) 

25. But a custom for the wife to dispose of her copyholds 
by surrender without the husband's assent is bad. (g) 

26. In Compton v. Gollinson (A), where the husband and 
wife were living apaH under articles of separation, the hus- 
band covenanted to join in all necessary conveyances, and in 
surrendering certain copyholds u the wife should appoint. 
It was held that the wife might alone surrender the copy- 
holds^ and that without a special custom to enable her to do 
so ; for that the wife was tenant, and not the husband, and 
that the estate could be forfeited or surrendered by her acts 
only, and not by his. 

27. But, as Mr* Jacob remarks (0? the judgment in this 
ease was founded partly on the opinion, since exploded, that 

(a) 2 Inst. 673 : Ck)m. Dig. B. & (e) 3 Bing. 378 ; 11 Moo. 243. 
F. G. 4 ; see also, as to tbe custom of (/) Doe tt. Shelton, S A. Sb £ 
London in this respect, Bobun's i66 ; 4 Ner. 4^ M. 857. 
Privilegia Londnii, 241, 3d ed. (^) Stevens v. Tyrrell, 3 Wils. 1. 

(b) Chap. 22. (A) 1 H. BL 334. 

(c) Dyer, 363 b. . <») 1 Rop. H. & W. 142 n. 

(d) Taylor v. Phillips^ 1 Ves. Sen. 
229 : 1 Watk. Cop. 64 : Glib. Ten. 322. 



OF HEB COPYHOIiDS. 51' 

a {fsmt oovert might, after articles of separation, be coBsidered 
at law as standing in the situation of a feme sole, and partly 
on the ground that a surrender by the wife alone imght bind 
her and her heirs by analogy to the operation of her fine, an 
analogy disQlaimed in other cases, (a) 

28. Now, however, by the 3 & 4 W. ۥ 74 (6), the husband's 
concurrence will, in certain cases, be dispensed with. 

29. The wife cannot appoint an attorney to surrender her 
copyholds without a custom, and it seems doubtful whether 
she could do so even by virtue of a custom, (c) 

30. Where by custom the husband and wife may surrender 
to the use of her will, the wife being separately examined, 
her will, without a previous surrender, will not be effectual. 
The surrender not being formal in this case, was not dis- 
pensed with by the 55 Geo. 3, c. 192. (d) This statute has 
been repealed by the late will act («), which has dispensed 
with a surrender to the use of a will. But it is presumed that 
the same construction will be given to this act, as to the 
necessity of a surrender to the use of a will of a married 
woman, as to the repealed act. 

31. The separate examination of the wife for the purpose 
of surrendering may by custom be taken before two of the 
tenants of the manor out of Court. (/) 

82. By the fines and recoveries act (^), surrenders by the 
husband and wife of equitable estates in copyholds, where she 
is separately examined, are made as binding upon her as if 
the estates were legal, and previous surrenders of a similar 
nature are declared to be valid. 

33. The 11 G. 4 & 1 W. 4, c. 65 (A) (which has repealed 

(a) 2 Wils. 2 ; 1 Ves. Sen. 230. (e) 7 W. 4. & 1 Yic. c. 26. 

{b) Sect. 91. See p. 48, ante; and (/) Driver v.ThoDapson, 4 Taunt. 

ex parte Shirley, there cited. 294. 

(c) Grahum v. Jackson^ Q. B. (^) 3 Dt 4 W. 4. c. 74. seet 90. 
811 ; 14 Law J. N. S. Q. B. 129 s 9 (h) Sect 12. 

Jut. 275. 

(d) Doe d. Nethercole v, Bartle, 
6 B. & Aid. 492. 

£ 2 



52 RENEWAL OF WIFE's LEASEHOLDS. 

a former statute which contained similar provisions (a) ), has 
removed the disability of coverture in instances when the 
wife is seised or possessed of leasehold property for lives or 
for years, so as to enable her, or any other person on her behalf, 
to surrender the old and take new leases. It is enacted by 
the statute, that in all cases where a married woman was or 
should become intitled to, or interested in, any lease or leases 
for life or lives, or for years absolutely determinable upon a 
life or lives, she, or any person or persons on her behalf, 
may apply to the Courts of Chancery, or to the other 
Courts of Equity in England, or of Great Session of the 
Principality of Wales, by petition or motion ; and that^ by 
the order and direction of any of those Courts, she, or any 
person to be appointed in her stead by the Courts, may by 
deed surrender such lease or leases, and accept and take, in 
the name and for the benefit of the married woman, a new 
lease or leases during such number of lives, or for such 
number of years determinable upon lives, or for such number 
of years as were mentioned in the lease or leases surrendered 
at the making thereof respectively, or otherwise as those 
Courts should direct. And the act declares that the fines 
for renewal and the incidental charges shall, unless other- 
wise paid or secured, be, together with interest, a charge upon 
the leasehold premises, for the use and benefit of the persons 
advancing the same (b) ; and that the renewed leases shall 
operate and be to the same uses, and be liable to the same 
trusts, charges, incumbrances, dispositions, devises, and con- 
ditions as the surrendered leases, (c) 

34. We have seen that the wife's consent will not be 
allowed to be taken in equity for the disposal of her rever- 
sionary personal estate by analogy to the effect which a fine 
formerly had at law. (d) 

35. However, besides its admission for the purpose of 
waiving her equitable right to a provision out of her choses 

(a) 29 Geo. 2. c. 31. (c) Sect. 15. 

(b) Sect. 14. (d) Vol. L p. 92, 



ELECTION WHERE MONET TO BE INVESTED IN LAND. 53 

in action, which hcu9 been already considered (a), her consent 
in Court has sometimes a further effect, as in cases where it 
has been taken for the purpose of declaring her election. (6) 

36. Where money is given on trust to be laid out in pur- 
chasing land, to be conveyed to a feme covert, she may, on 
an examination in Court, or before commissioners, elect to 
take it as money, (c) 

37. If the land, when purchased, is to be settled upon her 
in tail, her election was formerly made by a like examination 
upon a petition under the statute 39 & 40 Geo. 3. c 56. But 
this act was repealed by the 7 G. 4. c. 45, which (except as 
to proceedings commenced before Jan. 1st, 1834) has been 
also repealed by the late act for the abolition of fines and 
recoveries, (d) 

38. The subject of the execution of powers by married 
women, and of the validity of wills made by the wife where 
she is executrix, or by her husband's permission, will be con- 
sidered in the three ensuing sections. 

(a) Chap. 7. ante. 71 : Binford v. Bawden, 1 Yes. Jun. 

(&) As to the wife's election in a 512. 
suit, see Appendix No. 7. {d) Z k 4 W. 4. c. 74, sect. 70. 

(c) Pearson v. Brereton, 3 Atk. 



E 3 



54 



WITB HAT EXECUTB AUTHOBmT, 



rfc'<-»».''^**>\/ 



rf^ 9* 



»'»*y€>r 



^^ ^* (^ (rti^; 



SECTION m. 



OF THE EXECUTION OF POWERS BY MARRIED WOMEN. 



2. Wifr may execute mere auUio^ 

rity. 
d. Gift to wifi npon cofndition to 

sell or convey, 
4. May execute powers coupled 

with an interest, 
8. Power not affected by subsequent 

marriage. 
9; Appointment good though wife 

not expressly empowered to 

appoint during coverture. 

10. Pav>er to woman ^^ being soU^ 

not exercisable during cover- 
ture, 

11. Where power confined to par^ 

ticular coverture, 

12. Effect of agreement between 

husband and wife that she 
shall dispose of her real es' 
tates, 

13. Mr, Eoper*s remarks, 

14. Effect where such agreement 

after marriage. 



19. 
22. 



23. 

24. 

25. 
29. 

30. 

31. 



32. 



33. 

34. 



Where wife takes legal f^ with 

power. 
Specific performance &f wife's 

agreement to exeeuie power 

compelled. 
Wife's will under power must 

be proved. 
Practice as to probate: Mr, 

JacoVs remarks. 
Where probate has been refused. 
Probate n&w granted wherever 

power alleged^ sembie$ 
Equity, if necessary^ will disr 

pense with probate, senile. 
Whether power properly created 

not to be decided by ecdesias' 

Heal court 
But its decision as to testae 

mentary nature of instrument 

conclusive. 
Solemnities required to execution 

of powers. 
Effect of new will act. 



1. It seems to be a natural deduction from the principles 
upon which the disabilities of coverture are founded, that 
those cases must be excepted out of the general rule in 
which the interests of the husband and wife are not in the 
least affected by her separate acts. 

2. She may therefore execute a mere authority, whether 
it be given before or after marriage ; for that has no opera- 
tion upon any interests belonging either to herself or her 
husband, and she is no more than the instrument of another 



OR W)WteB, OB PERFORM dONDlTlOK. 55 

t)e)rdon{ so that a power given to her to convey another's 
estate may be executed by her without her husband's con- 
currence, and even in his favour, (a) In the exercise of 
such authority, the wife, as a feme sole, may do every 
necessary act; for whatever she is obliged to do will be con- 
sidered, not as her own, but as the acts of her principal. 

3. So, if land be given to a woman whilst single, who 
afterwards marries, or during her marriage, upon condition 
to sell or to convey them to another person, she alone may 
perfonn the condition, (b) 

4. As to the execution by the wife of powers coupled with 
an int^pest, it is observed by Sir E. Sugden (c), that when 
we consider that a power not simply collateral gives the 
cbmpfete dominion over the estate to the extent of the 
power, we may perhaps incline to think that a married 
woman ought not to haVe been permitted, in opposition to 
the rule of law, to divest herself of any estate or interest by 
the mere execution of a writing without a fine or recovery, 
although certainly there is no objection to her executing 
a power simply collateral, which distinction appears to have 
been adopted by Chief Justice Bridgeman. It, however, 
has long been firmly settled, that a married woman may 
execute a power, whether appendant, in gross, or simply 
collateral, and as well over a copyhold as a freehold estate, (d) 

5. Accordingly, if under a deed or will the wife take as 
tenant for life, with a general power of appointing the fee, 
she may ccmvey the estate by an execution of the power, 
the appointee taking the estate under the deed or will, (e) 

6. So, if the wife be tenant for life, with remainder to 
such uses as she shall appoint, and in default of appointment 
to herself in fee, she alone may, by appointment, defeat her 
own remainder, although she cannot, by an instrument inde- 

(a) Co. Litt. IS7 b; 52 a. (d) See the cases cited in 1 Sug. 

lb) 2 Roll. Rep. 68 : Br. Oui in Pow. 181, 7t)i ed. 
vita, pi. 15: and Dev. pi. 12. («) Daniel v. Upton, Noj^s Repi* 

(e) 1 Sug. Pow. 180, 7th ed. 80 : Sir W. Jones, 137 : 1 P. W. 149. 

E 4 



56 



EFFECT OF AGREEMENT BEFORE MARRIAGE 



pendent of her power, convey away her remainder without 
the concurrence of her husband, formerly in a fine or re- 
covery (a), but now in a deed executed as required by the 
late fines and recoveries act. (6) 

7. Upon the same principle, if she be tenant for life, with 
a power of leasing, she alone may exercise the power (c) ; 
but she cannot without a statute deed grant such a lease or 
leases, if she have not resort to the execution of her power. 

8. When a power is given to an unmarried woman, who 
afterwards marries, or to a married woman who survives her 
husband, and marries again : in all such cases she may 
execute the power, and the concurrence of her husband is 
not necessary, (d) 

9. And the appointment will be good, although the wife is 
not expressly empowered to appoint " during coverture." (e) 

10. But a power given expressly to a woman "being 
sole," cannot be exercised by her during coverture. (/) 

1 1 . And where a power is confined to a particular coverture, 
it can of course only be executed during such coverture, (g) 

12. It was unsettled, previously to the case of Wright v. 
Cadogan(A) (finally determined in the House of Lords), 
and that of Rippon v. Dawding(z), whether the husband 
and wife by mere agreement before, and in contemplation 



(a) 2 Ves. Scd. 191. 

(A) 3 & 4 W. 4. c. 74, sect. 40 & 
77. The powers of disposition given 
to the wife over her real estate by 
this act, are not to interfere with the 
exercise of any power which, inde- 
pendently of the act, might be vested 
in her, except so far as the power 
may have been suspended or extin- 
guished by any disposition under the 
act, see sect. 78. 

(c) See 2 Com. Rep. 496. 

(i) Ibid. p. 182. 

(e) Doe d. Bloomfield v. Eyre, 3 
C. B. 557 ; 16 Law J. N. S. C. P. 
64 ; 10 Jur. 1084. 



(/) The Marquis of Antrim v. the 
Duke of Buckingham, 1 Eq. Ca. Abr. 
343, pi. 4 ; 1 Ch. Ca. 17 ; 2 Freem. 
168, cited from the R^^istrar^s 
Book, B. 1662, fo. 377, in Bridg- 
man's Judgments, by Bannister, p. 
617. 

(g) Morris v, Howes, 4 Hare^ 
599 ; 16 Law J. N. S. Chan. 121 ; 
9 Jur. 966 ; 2 Eq. R. 299 ; affirmed 
on appeal, 10 Jur. 955. 

(h) 2 Eden, 239 ; 1 Bro. Pari. Ca. 
486. 

(0 Ambl. 565. 



THAT WIFB MAT DISPOSE OF HEB REAL ESTATES. 57 

of marriage, that she might dispose of her real estate by 
deed or will during the coverture, could enable her to 
defeat the right of her heir, after her death, by either of 
those instruments, since by descent of the legal estate he 
acquired a complete title at law. And it was doubted 
whether a Court of Equity could upon any principle affect 
the conscience of the heir, and oblige him to perform the 
agreement, since both the deed of a married woman without 
a fine, and her will, were void instruments from the disability 
of coverture, and the heir was not a party to the contract. 
Lord Hardwicke expressed his doubts upon the subject in 
Peacock v. Monk (a), but the two cases before referred to 
have removed all uncertainty upon the subject, in de- 
termining that a Court of Equity will consider the heir as a 
trustee, and oblige him to make a conveyance to the party 
in favour of whom the wife appointed the property. 

13. Mr. Roper remarks (6), that the grounds upon which 
such an agreement is binding upon the heir appear to be, that 
the agreement having been made before marriage, at a period 
when the wife was able to contract ; and as it clearly appears 
to have been the intention of the parties that the wife should 
reserve to herself a power to dispose of her own lands during 
the coverture, she, therefore, and the persons claiming under 
her appointment, have a right to the interposition of a Court 
of Equity to give full effect to the marriage agreement, and 
to remove any obstacles which, in point of form, or other- 
wise, invalidated the appointment at law; the more es- 
pecially, since the wife might have obliged her husband to 
concur in a fine and settlement of the estates pursuant 
to his engagement, which a Court of Equity, according 
to its well-known practice, will consider to have been per- 
formed, (c) 

(a) 2 Ves. Sen. 191 : Bramhall v. (A) 2 JElop. H. & W. 178. 

Hail, AmbL 467 •, 2 Eden. 220 : see (c) See Power v. Bailej, 1 Ball 

2 Bro. C. C. 544 : 2 T. R. 695 : & Beat. 249. 

George r. , Ambl. 627. 



58 WHERt: AGREEMEKT AFTER MARRIAGE. 

14. Such^ then, being the rule of Equity in regard to the 
faeif) upon an agreement between husband and wife before 
marriage, that she shall have a disposing power over her 
real estates when no conveyance of them to trustees is made 
for the purpose, Mr. Roper inquires whether the heir will 
be equally bound by such an agreement made after the 
marriage. 

In answer to this question, he observes, that the before- 
mentioned principle does not equally apply to an agree- 
ment after marriage as to one entered into before marriage, 
since in the former case the wife is disabled from entering 
into any contract in regard to her real property, either to 
bind herself or heir, and the husband's agreement can only be 
obligatory upon himself to the extent of his interest in the 
estate ; so that the agreement in the present instance cannot, 
as he presumes, bind the wife's heir, and convert him into a 
trustee of the legal estate, which he takes by descent, for the 
appointees of the wife. 

15. In Dillon v. Grace (a). Lord Redcsdale marks the 
distinction between the two cases in these words: "In 
Wright V. Englefield (J), and all the cases of that nature, 
the question was, whether a feme covert not having actually 
conveyed her estate, but having previous to her marriage 
entered into a contract to convey to certain uses, that 
contract (even so far as it was a stipulation for her own 
benefit) should b^ considered as binding against her own 
heirs, in the same manner as the contract of any other 
person. A Court of Equity held that her helf was bound 
as she was bound herself. This question could not arise in 
the case of a mere contracft to convey entered into after 
marriage ; for the wife's mere contract after marriage would 
have been void, whether made for her own benefit or that of 
other persons." 

16. The above distinctions seem equally to prevail when 

(a) 2 Sch. & Lefroy, 463. {b) Ambl. 468. 



WHERE ESTATE IS EQUITABLE. 59 

the wife is cestuique trust of her real property, the legal estate 
being outstanding ; because the same rule is applicable to a 
trust as to a legal estate, equity following the law. In 
Wright t). Gadogan (a), Lord Northington observed " that 
there was no rule so certain, so general, and so strongly ad- 
hered to by the ablest judges who had presided in equity, as 
to observe in omnibus the rules of law with respect t6 the 
regulation of property, and that such rules had been always 
strictly observed as principles in a Court of Equity." 

17. If, then, the wife be cestuique trust in fee of real 
estates, and she and her husband, by articles in writing 
before marriage, agree that she shall have power to dispose of 
the trust property ; her disposition will be good against her 
heir (J), as it is where the wife is seised of the legal estate. 

18. But if the agreement be after marriage, then, from the 
analogy between legal and equitable estates, s\i6h a contract 
would not have the effect of empowering the wife to appoint 
the absolute trust to the prejudice of her heir, who would be 
intitled to it at her death, if not disposed of by her in such 
a mode as by law is allowed to married women to pass their 
-estates during coverture. 

19. With respect to real estates which may accrue to the 
wife during the marriage by deed or will, if no trustees be 
interposed, and the instruments express that the lands shall 
.be to her separate use, and that she shall have power to dis- 
pose of them ; although she take the legal fee, she may never- 
theless appoint it, which will bind her heir and convert him 
into a trustee for the appointee, notwithstanding the case of 
Goodhill V. Brigham. (c) 

20. The before-mentioned agreements between husband 
and wife, respecting her power to dispose of her real estates, 
-belong entirely to the jurisdiction of equity ; for being execu- 

(a) 2 Eden, 258: see also 2 P. (c) 1 Bob. & Pull. 198. 
W. 713. - 

{b) See Wright v. Eoglefield, 
AmbL 468. 



60 EFFECT OF WIFE'S AGREEMENT TO EXECUTE POWER. 

tory, neither they nor any executions of the powers intended 
to be given by her to them, convey legal titles. Since, there- 
fore, a court of law cannot intermeddle with equitable rights, 
there can be no redress there for the appointees, (a) 

21. In Martin v. Mitchell (6), a question was raised, 
whether a married woman having a power of appointment 
over real estate, to be exercised by deed attested by two 
witnesses, could be compelled to exercise it in favour of a 
person to whom she and her husband had agreed to sell« 
Sir T. Plumer, M. R., expressed an opinion that a specific per- 
formance of her agreement could not be compelled : she was 
relieved fix)m the disability of coverture to the extent of 
enabling her to appoint by an instrument executed with the 
required formalities; without them it was only the agree- 
ment of a married woman, and as such invalid. 

22. But a contrary doctrine has been held by Lord Lynd- 
hurst, C, in the late case of Dowell v. Dew. (c) His 
Lordship there, adverting to Sir T. Plumer's observations in 
Martin v. Mitchell, remarked that such reasons would apply 
equally to the case of a defective execution of a power, 
whereas it had been long established that a defective execu- 
tion of a power might be supplied. Notwithstanding Sir T. 
Plumer's doubts, he thought upon principle that such an 
agreement was binding, and might be supported in equity. 

In the above case it had been held by Sir J. L. K. 
Bruce., V. C, that a specific performance of an agreement 
to make a lease entered into by the wife, who was tenant for 
life for her separate use, with a leasing power, might be en- 
forced against her. (d) And his Honour's decree was affirmed 
by Lord Lyndhurst on the above grounds. 

23. To establish in evidence the will of a married woman 
made in execution of a power, probate of it in the Ecclesias- 

(a) See Lord Kenyon's judgment (c) 12 Law J. N. S. Chan. 159. 
in Doe v. Staple, 2 Term Rep. 695. (d) 1 Y. & C. C. C. 355. 

{b) 2 Jac. & Walk. 413: see 1 
Bro. C. C. 21. 



PROBATE OF WIFE'S WILL UNDER POWER. 61 

tical Court is first necessary, in order to confirm judicially its 
testamentary nature. -^ ^ 

24. Upon the subject of probate of a will made by the wife, 
Mr. Jacob remarks (a) : 

" According to the former practice of the Ecclesiastical 
CJourts, a testamentary appointment of personal property by 
a feme covert, though made under a power given by the 
husband, was not admitted to probate without his concur- 
rence. But the appointment was nevertheless carried into 
execution in equity ; and when the husband had agreed by 
covenant, or bond, to permit his wife to dispose of property 
by will, he was liable to be sued at law for refusing his con- 
sent, (b) It is, however, now settled, that such an appoint- 
ment cannot be made available, either at law or in equity, 
without probate, (c) And the appointment is now allowed 
to be proved without the husband's consent, the probate 
being limited to the property comprised in the power, (d) 
In these cases the Ecclesiastical Courts will not look nicely 
into the question whether the appointment is authorized by 
the power, as the grant of probate does not determine the 
right, but leaves it open for the decision of the temporal 
Courts, (e) " 

25. However, in Allen v. Bradshaw (/), the Court, hold- 
ing that it was bound to decide in the first instance whether 
the power had been duly executed, accordingly refused 
probate, on the ground that the power was not duly ex- 
ecuted. And in a subsequent case (^), probate was refused, 

(o) 2 Rop. H. & W. 188. (rf) See Tappenden v. Walsh, 1 

(b) See Yin. Ab. Baron & Feme, Phill. 362 : Moss v, Brander, ibid. 
R. a : 4 Bum. Eccl. Law, 53 : Daniel 254. 

f . Groodwin, 2 Sugd. Powers, App. (e) 1 Phill. 353 : and see Braham 

20. V. Burchell, 3 Add. 263 : Draper v. 

(c) Ross V. Ewer, 3 Atk. 160 : Hitch, 1 Hagg. 674. 
Stone V. Forsyth, Dougl. 681 : Jen- (/) 1 Curt. 110. 

kins V, "VVhitehouse, 1 Burr. 54 : (g) In the goods of Monday, 1 

Rich V. Cockell, 9 Yes. 369 : and see Curt. 590 : see also in the goods of 

Tucker r. Inman, 1 Car. & Marsh. Boswell, 3 Curt. 745 : and Hughes 

83; 4 Man. & G. 1049; 5 Scott N.R. v. Turner, 4 Hagg. 30. 
843. 



62 JURISDICTION OF ECCLESUSTICAL COURT 

on the ground that there was no proof of the due execution 
of the will, the settlement not being before the Court. 

26. But where it was admitted that a married woman 
had power to dispose of a sum of money placed to her credit 
at a banker's, but it was doubtful whether she had in fact 
disposed of it, the Court considering that to be a question 
of construction which did not faU within its province to de- 
termine, granted probate to the executors limited to the 
settled property, and all accumulations over which she had 
a disposing power, and which she had disposed of. (a) 

27« However, in Tugnall v. Hankey (i), it was held, that 
although the Ecclesiastical Court can alone declare a writing 
to be testamentary, yet that it is not called upon to look 
at the power, but only to say, that if the testator had the 
power, the instrument is testamentary. 

28. Accordingly, in the late case of Barnes v. Vincent (c), 
where the Ecclesiastical Court had refused probate of the 
will of a married woman, on the ground that the power was 
defectively executed, it was held on appeal to the privy 
council, that the Court ought to have admitted it to probate^ 
leaving the question of the execution of the power to be 
dealt with by the Court, which might have to deal with the 
property which passed under the will ; Lord Brougham, in 
delivering judgment, noticing the unsatisfactory state in 
which the law was placed by the practice of the Ecclesiastical 
Courts of refusing probate when they conceived that the 
power had not been duly executed. 

29. It may therefore be considered as settled, that in 
future probate will be granted wherever a power is alleged, 
and no other objection arises. 

30. It seems, however, that as the practice of equity was 
formerly not to require probate, if the Ecclesiastical Court 
should take upon itself to say that an instrument, which in 



(a) Ledgard and Parr v. Garland, (b) 2 Moo. P. C. C. 343, 
1 Curt. 288. (c) 10 Jur. 233. 



ON PKOBATE OF WILIi UNDER POWER. 63 

the opinion of a Court of Equity is good as an exercise of 
the power, cannot be admitted to proof as a will owing to 
some defect of form, equity would resume its old jurisdiction 
and act independently of the Ecclesiastical Court, (a) 

3L It is clear that the Ecclesiastical Court has no juris- 
diction to decide whether the power was properly created, (b) 

32. But the decision of the Ecclesiastical Court as to the 
testamentary nature of the instrument is conclusive upon the 
temporal Court* (c) 

33. The production of probate wiU not alone be sufficient 
to induce a Court of Equity to act upon it ; for there are 
other special circumstances which may be required to give 
the instrument effect as a valid appointment, viz. attestation, 
sealing, &c., with which circumstances the temporal Courts 
have not trusted the judgment of the spiritual Court. The 
witnesses, therefore, to these facts, must be examined in chief 
to prove that the will was the wife's act, &c, ; and if an attesta- 
tion be not required by the power, still her signature must 
be proved, (rf) 

34. But now appointments by will are to be executed as 
other wills, and, if so executed, are to be valid although the 
required solemnities are not observed, {e) 

(a) Goldsworthy v. Crosslcy, 4 (rf) Rich ^. Cockell, 9 Ves. 876. 
Hare, 144. As to the formalities required by 

(6) Ex parte Tucker, in re Inman, powers, see 1 Sug. Puw. 278, 7tb ed. 
1 Man, & G.519 ; 1 Scott, N.R. 379; {e) See 7 W. 4. & 1 Vic. c. 26. 
8. C. Tucker v. Inmau, 1 Car. & sect. 10. 
Manh. 83* 

{c) Douglas V. Cooper, 3 M. & E. 
378. 



64 WILL OF WIFE EXECUTRIX. 



SECTION IV. 



OF THE WIFE'S WILL WHERE SHE IS AN EXECUTRIX. 



2. Effect of such a wiU. \ 3. Probate of it. 



1. Since the husband has no beneficial interest in the personal 
estate which the . wife takes in the character of executrix ; 
and as the law permits her to take upon herself that office, 
it enables her, in exception to the general rule that a married 
woman cannot dispose of property, to make a will in this 
instance, without the consent of her husband (a), restricted, 
however, to the property to which she is intitled as executrix. 

2. The effect of such an instrument is merely to pass by 
a pure right of representation to the testator or prior owner, 
such of his personal assets as remain outstanding, and no 
beneficial interest which the wife may have in any part of 
them (b) ; and with respect to the assets which may have 
been ieiived by the fL^eeutrix during Ae Jmage 
and not disposed of, they immediately become the husband's 
property, and are not affected by the will, (c) 

3. The proper probate in this case is one with the wife's 
will annexed, limited to the goods which she was intitled to 
possess as executrix, under which probate no other property 
can be recovered, {d) 

(a) 8 Vin. Ab. 42. pi. 9 : 4 Burn, (c) Hodsden v. Llojd, 2 B. C. C. 

56 : 2 East, 562. 534. 

{b) Stevens v. Bagwell, 15 Yes. {d) See sect 5. infra. 
156. 



WILL OF WIFE BY HUSBANDS FERMISSION. 



65 



SECTION V. 

OF THE WIFE'S POWER OF MAKING A WILL BY HER HUSBAND'S 

PERMISSION. 



1. Nature of such will, 

2. General permission insufficieni. 
8. Husband may revoke consent 

before probate, 
4. Where not allowed to retract 
consent* 



5. What wiU be evidence of consent. 

6. Will only valid if husband sur^ 

vives, 

8. Unless where wife executrix, 

9. Or where execution of power, or 

disposition of separcUe property. 



1. The wife may also, by her husband's permission, make a 
will disposing of her personal estate ; the husband thus 
waiving the interest which the law secures to him in his 
wife's property by disabling her from disposing of it during 
the marriage. 

2. In order to establish the will, a general assent that the 
wife may make a will is not sufficient ; it should be shown 
that he has consented to the particular will which she has 
made (a), and his consent should he given when it is 
proved, (b) 

3. He may therefore revoke his consent at any time 
during his wife's life, or after her death, before probate, (c) 

4. But his consent may be implied from circumstances ; 
and if after her death he acts upon the will, or once agrees 
to it, he is not, it seems, at liberty to retract his assent and 
oppose the probate, (d) 

5. And when the will is made in pursuance of an express 



(a) King9.Bettesworth,2Strange» sect. 9. pL 10: 4 Burn. EccL Law, 

891. 52: Anon. 1 Mod. 211. 

{b) Henlej v. Phillips, 2 Atk. 49. (d) Maas v. Sheffield, 1 Rob. Ecc. 

(c) Swinbarne on Wills, part. 2. B. 365 ; 10 Jur. 417. 

VOL. n. F 



66 



EFFECT OF WILL OF WIFE 



agreement or consent, it is said that a little proof will be 
sufficient to make out the continuance of that consent after 
her death, (a) 

6. The husband's consent to the will intitles the wife's 
executor to claim such articles of her personal estate, which 
would have been her husband's, as her administrator. It 
appears, then, that this consent is personal to the husband. 
It is no more than a waiver of his rights as his wife's admi- 
nistrator. It therefore can only give validity to the instru- 
ment in the event of his being the survivor. Hence it 
follows, that if he die before his wife, the will is void 
against her next of kin ; and she will be considered as 
having died intestate, if, after her husband's death, she 
make no disposition of her property. 

7. And as by his death her will becomes void, so far as it 
derived its effect from his consent, it therefore does not 
pass the right to property bequeathed to her during the 
coverture, (b) 

8. But it is still good so far as she was empowered to 
make it without his consent; and it therefore passes the 
right of representation to a person to whom she was ex- 
ecutrix, (c) 

9. And it will still be valid as an execution of a power, 
or as a disposition of property belonging to her during the 
coverture as separate estate, (d) 

10. If she acquires other property after her husband's 
death, it does not pass by the previous will ; for a different 



(a) Brook v. Turner, 2 Mod. 170: 
Maas V. Sheffield, tUn sup. When 
the will is made in pursuance of an 
agreement before marriage, or of an 
agreement made after marriage, for 
consideration, it falls under the same 
rules as a will made bj virtue of a 
power, as to which see anie^ sect. 3. 

(b) Stevens v. Bagwell, 15 Yes. 
156. 



(c) Scammell v. Wilkinson, 2 East, 
552: Birkett V. Vandercom, 3 Hagg. 
750. 

(d) See Dingwall v. Askew, 1 
Cox. 427 : Doe v. WeUer, 7 T. R. 
478 : Tappenden v. Walsh, 1 PhilL 
352 : Morwan v. Thompson, 3 Hagg. 
239 : and book 3, infriL 



MADE BY HDSBAKD'S PERMISSION. 67 

reason, viz., that at the time of making it, she had no testa* 
mentary power over such property, (a) 

11. Mr. Roper, after stating the law upon this point, puts 
the case of a married woman being appointed executrix and 
residuary legatee of B ; and that she, having choses in action 
of her own, survived her husband ; and that he, by his will, 
made prior to his wife's will, after mentioned, bequeathed to 
her his residuary personal estate for her sole use, with a 
power by will to dispose of it, and appointed her executrix ; 
and ftirther, that after his death she acquired personal 
property. " Let us presume," he proceeds, (b) " that she made 
a will during the marriage, with her husband's consent (and 
which he subscribed), bequeathing all her property of every 
kind, to which she might be intitled at her death, and over 
which she might have a disposing power, whether as such 
executrix and residuary legatee of B, and of her husband as 
above, or otherwise, and appointed executors. Two questions 
may be asked: First, what effect this will had upoii the 
different descriptions of property before mentioned? and 
secondly, what administrations ought to be granted by the 
Ecclesiastical Court ? From what has been said, and what 
will appear in the next section concerning the will of a 
feme executrix (c), and from what may be collected from 
the cases of Scammell v. Wilkinson (d), and Stevens v. Bag- 
well (e), the following answers may be given, viz., that in- 
dependently of the husband's consent, the wife's will passed, 
by right of representation, to her executors, the outstanding 
personal estate of B, whose executrix she was ; that it had 
no operation upon her own personal estate, nor upon that 
which she acquired after her husband's death, nor upon the 
beneficial interest which she took as the residuary legatee of 
B. But that it did operate upon her husband's residuary 
personal estate, bequeathed by him to her, under the power 

(a) Swinb. part. 2. sect. 9, pi. 5 : (e) See sect. 4, ante. 

2 East, 566. (d) 2 East, 5.52—656. 

(b) 1 Bop. H. & W. 171. («) 15 Ves- 139. 

F 2 



68 WHAT PROBATE WILL BE GRAIO'ED. 

given by his will for her to dispose of it, by her testament 
made either in his lifetime or afterwards, (a) And it is pre- 
sumed that, upon the same principle by which the right of 
representation to B was transmitted by the wife's will to her 
executors, the right of representation to her husband was 
transmitted by it to them ; for her will having been made 
with the assent of her husband, and a power given to her by 
his testament to make the will, and dispose by it of his 
residuary personal estate, and he having also appointed her 
his executrix, and consequently his sole legal personal repre- 
sentative, and since the appointment of an executor is 
essential to a perfect will, it is conceived that the husband's 
power to his wife to dispose by will of his residuary personal 
estate included the power of her appointing an executor to 
perform the trusts of it ; and that, as such executor would 
represent the wife, he must also be the representative of the 
husband, whose representative the wife was by his own 
appointment. But this question was not alluded to in 
either of the cases last referred to, except that Sir William 
Grant observed, in Stevens v. Bagwell (6), that the Eccle- 
siastical Court limited the probate to the interest which the 
wife took under that will, and that no notice was taken of 
her nomination of executors. 

** With respect to the administration to be granted by the 
Ecclesiastical Court in such a complex, case, it appears that 
a limited probate of administration cum acfiyptis annexis 
quoad the effects of the wife's husband and of B, may be 
granted to her executors ; but no probate or administration 
of her own choses in action not reduced into possession 
during the marriage, nor of her other property acquired after 
her husband's death, ought to be granted to them ; for these 
not passing by her will, the administration of them belongs 
to her next of kin, and not to her executors ; her executors, 
therefore, have no right to intermeddle wth them. Hence 

(a) lo Ves. 154. {b) Ibid. 



WHEHE WIFE MAY BE SUED AS FEME SOLE. 



69 



appears the impropriety there would be, if the Ecclesiastical 
Court were to grant to the wife's executors an unlimited 
probate in such a case ; for they would be enabled to recover 
property by it, which ought not to be administered under 
any of the wills, but by her administrator only ; so that if a 
suit were instituted by her executors in the Ecclesiastical 
Court to obtain a general probate, the Court of King's Bench 
would grant a prohibition, (a) " 



SECTION VL 

IN WHAT CASES THE WIFE IS PERMITTED TO CONTRACT, SUE, 
AND BE IMPLEADED AS A SINGLE PERSON. 



3. Where hu^and banished or 

abandons country for lifcy or 
marriage dissolved by act of 
parliament. 

4. Where husband transported for 

years, 
6. Effect of husbands temporary 
abseficCy or where he is a fo- 
reigner, 

1 1. Not where husband alien^ though 

never in this country* 

12. Unless where alien enemy. 



13. Nor where divorce ^ mensft 6t 

thoro. 

14. Action by wife in name of hus~ 

band 

17. Suit by wife alone in Ecdesi" 

astieal Court 

18. Action by wife of lunatic. 

19. Wife sued alone may have pro- 

cess for costs in her name alone. 

20. Effect of marriage of feme 

plaintiff. 

21. Of feme defendant. 



1. The decisions which more immediately preceded the 
important case of Marshall v. Kutton(i) had deeply in- 
trenched upon the rules of common law, by which, with 
certain exceptions, the wife is. unable to sue or be sued as a 
feme sole. But the doctrines of the common law have been 
restored by the solemn decision of the twelve judges in 



(a) 2 East, 552. 



{b) 8 T. B. 547. 



F 3 



70 



WHERE WIFE MAT SUE AND BE SUED 



Marshall v. Rutton, and these decisions (a) must now be 
considered as overruled. 

2. The earliest cases upon this subject proceeded upon 
the ground of the husband being considered as dead, and 
the widow as being in a state of widowhood, or upon the 
marriage contract being dissolved by a divorce h vinculo 
matrimonii 

3. Accordingly, if the husband be banished from or 
abandon his country for life (6), or if the marriage be dis- 
solved by act of parliament, in all such cases the wife's 
disabilities to contract, or to sue and be impleaded as a 
single woman, are removed. 

4. The principle of these exceptions was afterwards ex- 
tended to transportations for a certain number of years 
beyond which the husband's life might continue ; for, during 
such exile, the wife being reduced to the same condition as 
she would have been if the sentence had consigned her 
husband to perpetual banishment, the Courts determined to 
impart to the wife the same powers and remedies, and to 
place her in the like situation as if the return of her hus- 
band had been from the first impracticable. During such 
period, therefore, the marriage contract is suspended, and 
the wife is to be considered as a single woman so as to be 
able to contract, to pay and receive money, to sue and be 
sued, and even liable to be taken in execution. And it 
would seem that when the husband's limited exile has ex- 
pired, or if he be pardoned, the disabilities attending cover- 
ture will nevertheless continue suspended until his actual 
return, (c) 



(a) Ringstead v. Lady Lanesbo- 
rough, and BarweU v. Brooks, 
Cooke*s Bankrupt Law, 28—31 : 
CJorbett v. Poelnitz, 1 T. R. 5 : Derry 
V, Duchess of Mazarine, 1 Ld. Raym. 
147 : De Gaillon v, L'Aigle, 1 Bos. 
& Pull. 357. 

(h) Belknap'scase, Co.Litt. 1326.: 



Weyland's case, Co. Litt 133 a 
Wilmot's case, Moor's Rep. 851 
Portland v, Prodgers, 2 Vem. 104 
NewBome v. Bowyer, 3 P. W. 37 
Sparrow v. Carruthers, cited in 1 
T. R. 6., and 2 Bl. Rep. 1197. 

(c) Carroll v. Blencow, 4 Esp. N. 
P. C. 27 : Sparrow v. CarrutLerSy ubi 



AS A FEME SOLE. 71 

5. Mr. Roper observes (a) : " It will appear from con- 
sideration of the above exceptions to the general rule of the 
common law, that they were founded upon the principle of 
the husband being under the necessity of absenting himself 
from this kingdom, and that his return to it was forbidden, 
and did not depend upon his own will and pleasure. When 
the principles laid down in Marshall v. Button are con- 
sidered, and that the common law did not permit the hus- 
band and wife, by any agreement between themselves, to 
place her in the situation of a single woman as to the power 
of contracting &c., it is presumed that (notwithstanding 
the contrary decisions before referred to (6), and some 
posterior (c) to Marshall v. Rutton), whether the husband 
be a native subject or a foreigner, if he go abroad leaving 
his wife here, or being a foreigner, although he may never 
have been here, still as the husband's absence in either case 
depends upon his own will, his quitting or being out of the 
kingdom will not suspend the marriage contract, and place 
his wife in the situation of a feme sole, so as to restore the 
right-s of disposition, personal liabilities, and powers which 
she parted with on entering into the marriage state, (d) " 

6. In support of the above observations Mr. Roper cites 
the two following cases, which were decided subsequently to 
that of Marshall v. Rutton. 

7. In Marsh v. Hutchinson (e), the first of these cases, 
the demand was against the wife alone for coals supplied to 
her the last three or four years ; and her defence was cover- 
ture. In 1783, her husband (who was an Englishman) left 

sup. : see also ex parte Franks, 7 (b) Ante, p. 70. note (a). 
Bing. 762, where it was held that the (c) Walford v. Duchess of Pienne : 

wife of a convict, who had heen sen- Frank v. Duchess of Pienne, 2 Esp. 

tenced to transportation for fourteen N. P. C. 554, 587. 
years, was liable to be made a bank- (rf) Farrer v. Granard, 1 New 

rupt, although her husband re- Rep. 80 : Kay v. Duchess of Pienne, 

mained in the country. But see Co. 3 Campb. 123 : Jones v. Smith, 3 

Litt. 133 a, and the observations of Mees. & Wei. 526. 
Lord Eldon in 2 Bos. k Pull. 231. {e) 2 Bos. & Pull. 226: Cham 

(a) 2 Rop. H. & W. 121. bers v. Donaldson, 9 East, 471. 

F 4 



72 WHERE WIFE MAT SUE AKD BE SUED 

this country, and had occasionally been here since that period, 
but he haying purchased the appointment of agent for the 
English packets at the BriU, in Holland, had for the last ten 
years resided there, and became possessed of lands in that 
country. In 1795 his agency ceased, in consequence of the 
irruption of the French into Holland, and he sent his wife 
and family to reside in this country, but he remained in 
Holland to look after his grounds, and with a view to the 
recovery of his situation, if the intercourse between England 
and Holland should be re-established. His wife was con- 
sidered a married woman in the place where she lived, and 
her counsel insisted, that her husband being domiciled in a 
foreign country, from which he was not likely to return, his 
wife in this country must be treated as a single woman, and 
therefore capable of making contracts to bind herself. But 
the Court determined that the husband's residence in Holland, 
under the above circumstances, did not enable his wife, re- 
sident here, to bind herself by her own contract as a feme 
sole. And Heath, J., observed, that in the old cases of 
banishment and abjuration, as well as in the more modem 
ones of transportation, the husband could not return, as it 
would have been contrary to law; and that there was no 
case in which the wife had been held liable, her husband 
being an Englishman. 

8. The second case was one where the action was brought 
by the wife as a feme sole ; it was trespass (a), to which a 
plea of the plaintiff being a married woman was put in. It 
appeared that in 1805 the husband went to America, leaving 
his wife destitute, and that the plaintiff ever since lived 
separate from him, and made contracts here, and obtained 
credit as a single woman; and that she, for her support, 

(a) Boggett V. Frier, 11 East, feme sole, there being some evidence 

801. In Johnston v, Kirkwood, 4 that he was alive, the court gave 

Dru. & War. 379, where the wife, leave to amend the bill, bj making 

who had been deserted by her hus- the husband a defendant, and charg- 

band, who had left the country se- ing him to be out of the jurisdiction^ 

veral years before, filed a bill as a and to have abandoned the wife. 



AS A FEME SOLE. 73 

had, since the year 1805, carried on trade as a feme sole. 
The Court decided that the plaintiff could not sustain the 
action. 

9. So, in Williamson v. Dawes (a), where the husband, who 
had been a bankrupt, had absconded, it was held that an 
action could not be maintained against his wife as a feme 
sole ; Tindal, C. J., remarking, that here there was no civil 
death of the husband, nor could an involuntary absence be 
predicated, for the husband might return, to this country 
whenever he pleased, if there happened to be any legal 
defect in the proceedings against him. And Bosanquet, J., 
ol^erved, that it could not be said that if a party committed 
an offence which might amount to a felony, and quitted the 
kingdom, such absconding was analogous to a transportation 
for life, or for a term of years, by the judgment of a court 
of law, 

10. In Kay v. Duchess of Pienne (J), Lord EUenborough 
thought that if the husband was an alien and had never 
been in this country, the wife might be sued as a feme sole. 
And in Stretton v. Busnach (c), where an action was 
brought against the wife of an alien who had been in this 
country, the Court seems to have Intimated an opinion that 
if the husband's absence had not been temporary, the wife 
might have been sued as a feme sole. 

11. But in the late case of Barden v. Keverberg (rf), 
Parke, B., remarked that there must have been some mis- 
apprehension of what Lord EUenborough said in the case of 
Kay V. Duchess of Pienne (e), or his Lordship must have 
been in error, because he referred to the case of Derry v. 
Duchess of Mazarine (/) in support of his proposition, 
whereas that was the case of an alien enemy who could not 

(a) 2 Moo. k Scott, 352. appear from the report in Bingham, 

{b) 3 Camph. 123 : see 2 Bos. k 1 Bing. N. C. 139. 

P. 233. (d) 2 Mees. & Wels. 61. 

(c) See the report of this case in («) Ubi sup. 

4 Moo. & Scott, 678 : this does not (/*) 1 Ld. Bajm. 147. 



74 WHERE WIFE MAT SUE AND BE SUED 

be in England lawfully, analogous to the case of the wife of 
a person transported. 

In the above case of Barden v. Keverberg the wife was 
sued as a feme sole. She pleaded coverture, to which the 
plaintiff replied that the husband was an alien who had 
never been in the kingdom ; and that the plaintiff had 
contracted with her as a feme sole on her own credit. 
There was no evidence that the defendant had represented 
herself as a married woman. It appeared that the husband 
of the defendant vras a foreigner resident in Holland, and it 
did not appear that he had ever been in England. Parke, B., 
said, supposing the replication good, although he had a 
strong opinion it was not (because the cases in which the 
wife had been held liable, her husband being abroad, applied 
only where he was civUiter mortuus\ the plaintiff was bound 
under' it to make it out that the husband was an alien, that 
he was resident abroad, and never in this country, which 
facts were admitted ; and also that the defendant had repre^ 
sented herself as a feme sole, or that the plaintiff dealt with 
her believing her to be a feme sole. That the law did not 
make her liable as such, merely because her husband was an 
alien and continually abroad. 

12. But when the husband is prevented from coming 
here, as in the instance of his being an alien enemy j then the 
principle of exception applies, {a) 

13. A divorce h mensd et tharo for adultery does not dis- 
solve the relation of husband and wife, and, therefore, does 
not render the wife liable to be sued as a feme sole, (b) 

14. In cases where the wife has caused an action to be 
commenced in the name of her husband, the Court has 
refused to stay the proceedings on the application of the 
defendant, (c) 

(a) Deny v. the Duchess of Ma- 3 Brod. & Bingh. 92 ; Fairthorne v. 
zarine, 1 Ld. Bajm. 147. Blaquiere, 6 Maule & Sel. 73. ;j 

(b) Lewis r. Lee, 3 B. & C. 291 ; (c) Chambers t7. Donaldson, 9 

5 Dow. & Ry. 98 : EUah v, Leigh, East, 471 : Mingotti v. Drummond, 

6 T. B. 679 : Hookham v. Chambers, 1 Hanmer, 469. 



AS A FEME SOLE. 



75 



15. And where the husband had by a separation deed 
agreed to give up the wife's property to -her, and she after- 
wards brought an action in their joint names for a debt due 
to her as executrix, a plea of a release given by the husband 
was set aside on motion, (a) 

16. But in Harrison v. Almond (i), where the husband 
and wife were living separate, and the wife had brought an 
action for an assault without her husband's authority, it was 
held, on the application of the husband, that the proceedings 
must be stayed until an indemnity against costs was given 
to him. 

17. A married woman, in the absence of her husband, 
will be allowed to sue alone in a testamentary cause in the 
Ecclesiastical Court, on finding security for costs, (c) 

18. The wife of a lunatic, who has no committee, has a 
sufficient implied authoAty to sue in the name of the 
lunatic, (d) 

19. Where the wife, being sued alone, pleads coverture, 
and a verdict is found for her upon this plea, she is intitled 
to costs, (e) The process for costs may be in her name 
alone, for the plaintiff having declared against her as sole, he 
is concluded from denying it. (/) The husband in such a 
case cannot have execution without a scire facias, (g) 



20. If a woman marries during the pendancy of an 
action brought by her, the coverture may be pleaded in 
abatement, as a plea puis darrein continuance. (A) But 
it is matter for plea in abatement only, (i) If it be not 



(a) Innell v. Clement, 4 B. & Aid. 
419. 

(b) 4 Dowl. P. C. 321 : see also 
Morgan v. Thomas, 2 Dowl. P. C. 
832 ; 2 Cromp. & Mees. 3S8. 

(c) Sator V. Christie, 2 Add. 160: 
see 10 Mod. 64. 

(d) Bockv.Sbide,7Dowl.P.C.22. 

(e) Findlej v. Farquharson, 3 C. 



B. 347 ; 4 Dowl. fc L. P. P. 185 ; 
15 Law J.N. S.C. P. 262. 

(/) Wortle7t7.Ra3mer,Dougl.614. 

(g) Ibid. 

{h) Bull. N. P. 309 : Walker v. 
Golling, 1 1 Mees. & W. 78. 

(t) Bendix v. Wakeman, 12 Mees. 
& W. 97 ; 13 Law J. N. S. Ex. 15 : 
Gujard v. Satton, 3 C. B. 153; 15 



76 



WIFE TRADER AS FEME SOLE 



thus pleaded, the action proceeds as if she were still a feme 
sole, (a) ^ 

21. It is said that if a feme defendant marries after the 
commencement of the action, her coverture cannot be pleaded 
in abatement (b) ; nor can she bring a writ of error on this 
ground, (c) But where a feme sole was sued in an inferior 
Court, and removed the cause to the King's Bench by 
habeas corpus, and there pleaded that she was covert at the 
time of suing out the habeas corpus (eZ), this plea was held 
good: in another case, a similar plea was set aside on 
motion, (e) 



SECTION vn. 



OF THE WIFE'S POWER OP TRADIN(^ AS A FEME SOLE BY THE 

CUSTOM OF LONDON. 



1. The custom. 

2. ConsCrued strictly. 

3. The trade must be carried on in 

the city. 

4. Husband^ s power in determining 

the trading. 

5. Intitled to wif^s savings in law. 



6. JVh^her intitled in equity to 

wife*s savings. 

7. Suits by or against wife sole 

trader. 
9. Husband must be party. 

10. Liable to the banhrupt laws. 

11. Bond of wife sole trader void. 



1. There is one exception to the wife's disability arising 
from coverture founded upon particular custom, for by the 
custom of the city of London, a married woman is enabled 
to- carry on trade as a feme sole merchant. The custom, as 



Law J. N. & C. P. 225 ; 8 Jur. 459 : 
see Chantler v. Lindsaj^ 16 Mees. & 
W. 82 ; S. C. 4 DowL & L. P. P. 
d39y nom. Charlton v. Lindsej. 

(a) Morgan v. Painter, 6 T. R. 
265 : see also Hollis v. Freer, 5 
DowL P. C. 47. 

(b) 1 Ghitty on Pleading, 465, 
7th ed. by Greening. 



(c) King V. Jones, 2 Ld. Raym. 
1525; 2Str.811. 

{d) Hetherington v. Reynolds, 1 
Salk.8; 11 Mod. 142. 

(e) Haddock v. Howard, Barnes, 
355. 



BY CUSTOM OF LONDON. 77 

translated from the Liber cdbtis in the town-clerk's office, is 
as follows : ^^ Where a feme, covert of the husband, useth 
any craft in the said city on her sole account, whereof the 
husband meddleth nothing, such a woman shall be charged 
as a feme sole concerning everything that toucheth the craft ; 
and if the husband and wife be impleaded, in such case the 
wife shall plead as a feme sole ; and if she be condemned, she 
shall be committed to prison till she have made satisfaction, 
-and the husband and his goods shall not in such case be 
charged nor impeached." 

2. Upon this custom, which must be construed with strict* 
ness (a), the following observations occur : — 

3. The trade must be carried on within the city, and on 
the wife's sole account : it seems, therefore, that if by any 
means it can be proved that her husband had any concern 
in it, the case will not be protected by the custom, (b) 

4. The husband's intermeddling is expressly provided 
against by the custom. He may, however, determine his 
wife's trading in future, but he cannot do so in retrospect ; 
neither can he do any act to injure her creditors, who are 
intitled to be satisfied out of her property in trade, (c) 

5. But after those demands are satisfied, he may, as it 
would seem, by law possess himself of the surplus of her 
property ; for the custom does not extend to this point, k 
regarding only trade and commerce, (d) 

6. Yet although he may do so at law by virtue of his 
legal right, still it may, as Mr. Roper observes (e), be a 
question whether a Court of Equity would not, as in the 
instances after mentioned, consider this surplus as the wife's 
separate property, she having procured it by her own in- 
dustry, and with the permission of her husband, and without 
any risk incurred by him. 

(a) 1 Roll Abr. 567: 2 Leon. (c) Lavie r. Phillips, 3 Burr. 

109. 1782, 1785. 

{b) Laogham r. Bewett, Cro. Car. (d) Lavie v. Phillips, tibi sup. 

68 : 3 Burr. 1782. (e) 2 Rop. H. & W. 125. 



78 WIFE TRADER AS FEME SOLE. 

7. The proper tribunals for the wife to sue op be impleaded 
are in this instance those belonging to the city ; and the 
superior Courts will not interfere with these jurisdictions, 
since the inferior judges are best acquainted with the customs 
prevailing within those limits, (a) 

8. But if the wife be sued in one of the Courts at West- 
minster, and the custom be pleaded, it will be there attended 
to and allowed, (b) 

9. And when she sues or is impleaded either in the city 
Courts, or in those above, her husband must be joined for 
conformity (c) ; for a married woman cannot singly execute 
a warrant of attorney. 

10. As a necessary consequence of the wife's power to 
contract debts in her business, she is liable to be a bankrupt ; 
and this is for her advantage, for a different construction 
would subject her to perpetual imprisonment, (d) 

11. In Read v. Jewson (e), the Court said that a feme 
covert sole trader cannot execute a bond, because that would 
bind her heirs if she had real assets, which no custom could 
warrantt 



(a) Cro. Car. 69 : 3 Burr. 1782 : rington, 1 Atk, 206: but see 1 Car. 

Beard v. Webb, 2 Bos. & PuU. 97, & P. 266. 

in which case all the authorities are (c) Caudell v. Shaw, 4 Term Bep. 

collected and commented upon hy 361 : 2 Bos. & PuU. 98 : 2 Wils. 3. 

Lord Eldon. (d) 3 Burr. 1783. 

{b) 3 Burr. 1782 : ex parte Car- (e) Cited 4 Term Bep. 362. 



WHERE WIFE MUST BE SUED WITH HUSBAND. 



79 



SECTION vm. 



IN WHAT CASES THE HUSBAND AND WIFE MUST BE JOINED 

AS DEFENDANTS 



/uj:^,^o 



2. Husband and wife must be 

joined where coniract by wife 
dam fiola. 

3. W^e cannot be joined where 

eaniraet after tnarriage. 

4. fftuband and wife must be joined 

where tori by wife before mar^ 
riage. 



5. Or where tort by wife alone 

during marriage^ or by both. 

6. Conversion how to be stated in 

trover. 

7. Where tort by husband and wife 

act of husband only, 

8. Appearance where husband sued 

jointly with wife. 



1. In cases not within the exceptions detailed in the pre- 
ceding sections, the wife can at law only be sued jointly 
with her husband. 

2. Where the cause of action is founded upon a contract 
by the wife dum sola^ as a debt contracted by her before 
marriage, the action must be brought against the husband 
and wife jointly, (a) 

3. But in an action founded on a contract subsequent to 
the marriage, the wife cannot be joined as a defendant (6), 
the contract being void as against her; and for the same 
reason, if the contract was previous to the marriage, a sub- 
sequent promise by the wife cannot be alleged, (c) 

4. Where the cause of action is founded on a tort com- 
mitted by the wife before marriage, as in trover, the husband 
and wife must be joined as defendants, (d) 

5. Where the cause of action arises from a tort by the 



(a) Mitcheson v. Hewson, 7 T. R. 
348 : Richardson v. Hull, 1 Brod. & 
Bing. 50. 

(b) See 4 Vin. Ab. 93, pi. 5 : and 
Fraser v. White, 1 Scott, N. R. 604 ; 
4 Jur. 796. 



(c) Morris v. Norfolk, 1 Taunt. 
212 : see Fittan v. Foster, 1 B. & C. 
248 ; 2 Dowl. & R7. 363. 

(d) 2 Saund. 47 ly note. 



80 WHEBE WIFE MUST BE SUED WITH HUSBAND. 

wife alone during the marriage, as in an action for slander 
by her (a), or where it arises from a tort committed by 
the husband and wife together, the action lies against 
both, (b) 

6. So, trespass lies against the husband and wife for their 
joint act. (c) In an action of trover against them, the con- 
version, if subsequent to the marriage, should be stated to 
be to the use of the husband alone, as the wife cannot 
acquire property by it (d) : but after verdict a declaration 
stating the conversion to be to the use of the husband and 
wife has been held good, as the conversion might have been 
by destruction, and consequently without the acquisition of 
property, (e) 

7. But in some cases a tort by husband and wife may be 
considered in law as the act of the former, and the action 
may be brought against him alone : thus, trover lies against 
the husband alone on a conversion by both. (/) 

8. Where the husband is sued jointly with his wife, an 
appearance should be entered by him for both ; but where 
he appeared for himself alone, it was held that this appear- 
ance could not be treated as a nullity (g) ; but the plaintiff 
has been permitted, after having served his wife, to enter an 
appearance for her under the statute 12 Geo. 1. c. 29., and 
to sign judgment for want of a plea. (A) 

(a) Swithiu v. Vincent, 2 Wlls. (/) 2 Saund. 47 ly note: see 1 
227. Chitty on Pleading, 104, 7th ed. bj 

(b) Com. Dig. Bar. & Feme, Y. Greening. 

(c) Vine v. Saunders, 4 Bing. (ff) Clarke v, Norris, 1 Hen. Bl. 
N. C. 96 ; S. C. 5 Scott, 359 ; and 235. 

6 Dowl. P. C. 233. (A) Russell v. Buchanan, 6 Price, 

(d) 2 Saund. 47 ly note : Cro. Car. 139. See upon this subject, 2 Arch- 
254. hold's Practice, 1097, 8th ed. 

{e) Kcjworth v. Hill, 3 Bam. & 
Aid. 685. 



WHERE WIPE DI8CHARQED WHEN ARRESTED. 



81 



SECTION IX. 

OF THE DISCHARGE OF THE WIFE WHEN ARRESTED ON MESNE 
AND FINAL PROCESS, AND OF HER DISCHARGE UNDER THE 
INSOLVENT DEBTORS ACT. 



1. Discharged when arrested on 

mesne process without hus- 
band. 

2. Rule of the courts where wife 

arrested with husband* 

3. Husband if arrested musiput in 

bail for both, 

4. Where wife not discharged 

when arrested on mesne pro- 
cess. 



6. Where wife will be discharged 
when taken in execution. 

8. Wife not discharged having 

married during suity and been 
taken in execution alone. 

9. Attachment for nonpayment of 

costs. 
10. Mai/ take the benefit of the in- 
solvent act. 



1. In actions against the husband and wife for debts in- 
curred by her before the marriage, if she be arrested on 
mesne process, either with or without her husband, she will 
be discharged on entering an appearance, or the bail bond^ 
if any, will be ordered to be given up to be cancelled, (a) 
And this will be the case, although her husband constantly 
reside abroad (6), and although she and her husband live 
apart under articles of separation, and he allows a separate 
maintenance (c), or even although, at the time she obtained 
the credit, she appeared and acted as a ferae sole, if she did 
not deceitfully represent herself as such, in order to obtain 



(a) Edwards v, Rourke, I T. R. 
486 : Crookes v. Fry, 1 B. & Aid. 
165 : Taylor v. "Whitaker, 1 Dow, & 
"Rj. 225 : Inglish v. Cabellano, 1 
Law J. K. B. 149. See 1 Taunt. 255, 
and 1 Archbold's Practice, 640, 8th 
ed. by Chitty, where the reader will 

VOL. II. 



find full information upon the sub- 
ject of this section. As to the wife's 
discharge in equity, see Attorney- 
General V. Adams, 12 Jur. 637. 

(b) 1 East, 17 n> see De Gaillon 
V. L'Aigle, 1 Bos. & Pull. 8. 

(c) Warden v. Gooch, 7 East, 582. 



G 



82 



WHEN ARRESTED ON MESNE PROCESS. 



the credit (a) ; or if, by mistake, she alleged her belief that 
her husband was dead (&), or if the plaintiflF, at the time of 
giving the credit, knew her to be a married woman, (c) 

2. The practice of the Court of Queen^s Bench is the same 
where she is arrested with the husband (d) ; but in this 
case the Court of Common Pleas has sometimes refused to 
discharge her. (e) 

3. But the husband, if arrested, is not discharged without 
putting in bail for both. (/) And where the husband was 
an attorney, it was held that he was not privileged from 
arrest in such an action, (g) 

4. However, if the wife has fraudulently held herself out 
as a feme sole (A), or has done acts equivalent to a represent- 
ation of herself to be a feme sole, as where she has drawn or 
accepted bills of exchange (z), or where the fact of the mar- 
riage is in doubt (A), she will not be discharged, but will be 
left to her plea of coverture in the usual course of pro- 
ceeding. 

5. In Moses v. Richardson (/), where the wife had suf- 
fered judgment to go by default, and had been taken in 



(a) Collins v. Bowen, 1 New Rep. 
54 : Hollingale v. Lloyd, 6 Dowl. P. 
C. 665 ; 3 Mees. & W. 416. 

(b) Pitt V. Thompson, 1 East, 16. 

(c) Slater v. Mills, 7 Bing. 606 ; 
5 Moo. & P. 602 ; 1 Dowl. P. C. 
230 : Warden v. Gooch, 7 East, 582. 

(df) Crookes v. Fry, 1 B. & Aid. 
165 : Cornish v. Marks, 6 Mod. 17 : 
Harrison v. Bearcliffe, 2 Str. 1272 : 
Taylor r. Whitaker, 1 Dow. & Ry. 
225 : Lawson v. Shepherd, 8 Law 
J. K. B. 104. 

(e) Roberts r. Mason, 1 Taunt. 
254 : see 5 B. & Aid. 759 : contra. 
Anon. 3 Wils. 124. 

(/) Roberts v. Mason, ubi sup. : 
Taylor v. Whitaker, ubi sup,: Crookes 
V. Fry, 1 B. & Aid. 165. 

(g) Roberts v. Mason, ubi sup. 

[h) Waters v. Smith, 6 T. R. 



451 : Partridge v. Clarke, 5 T. R. 
194 : Luder v. Justice, 1 Bing. 344 ; 
8 Moo. 346 ; 2 Law J. C. P. 10 : 
Simon v. Winnington, 1 Dowl. P. C. 
16 : Hall v. Barber, 1 Dowl. P. C. 
8 : contra, Carlisle v. Starr, 9 Price, 
161 : see Harvey v. Cooke, 5 B. & 
Aid. 747 : Hookham v. Chambers, 
3 Brod. & Bing. 92 ; Exparte Wat- 
son, 16 Ves. 265 ; Pannell v. Tayler 
1 Turn. & Russ. 100: 3 Bos. & 
Pull. 128—220. 

(«) Walsh V. Gibbs, 4 Dowl. P. 
C. 683 : Prichard v. Cowlam, 2 
Marshall, 40: Jones v. Lewis, 7 
Taunt. 55. 

(k) Partridge v. Clarke, 5 T. R. 
194 : Pearson v. Meadon, 2 Bl. Rep. 
903. 

(/) 8B.&C.421. 



WHEN TAKEN IN EXECUTION WITH HUSBAND. 83 

execution, the Court refused to discharge her, but left lier to 
her writ of error. 

6. Where a judgment is obtained against the husband 
and wife, the writ of capias ad satisfaciendum may be issued 
against both (a), and the wife will not be discharged unless 
it appears that she was arrested by collusion between the 
plaintiff and her husband (6), or that she was improperly 
joined in the action (c), or that she has no separate property 
out of which the deiQand can be satisfied, (d) 

7. The burden of showing that the property is for the 
wife's separate use lies upon the plaintiff, (e) But where it 
appears, from the affidavits on the other side, that there are 
reasons for believing that the wife has separate property, the 
onus of proof will then be thrown on her. (/) 

8. In the late case of Beynon v. Jones (^), the Court 
refused to discharge the wife who had been sued alone as a 
feme sole, and had married during the suit, and been taken 
in execution alone. Sir F. Pollock, C. B., tjiere said: — 
" The whole practice of discharging married women who 
are in lawful custody on a ca. sa. is of very recent date, and 
certainly appears to rest on no principle whatever. The 
writ of ca. sa. is the right of the plaintiff, as the result of 

(a) See Longstaff r. Rain, 1 Wils. (d) Chalk v. Deacon, 6 Moo. 128 : 
149 : Anon. 3 Wils. 124 ; S. C. Ro- Sparkes v. Bell, 8 B. & C. 1 : Evans 
bcrts V. Andrews, 2 W. Bl. 720: v. Chester, 6 Dowl. P. C. 140; 1 
Berriman v. Gilbert, Barnes, 203 : Jur. 778 : Findlej v, Farquharson, 
Pitts V. MiUer, 1 Stra. 1167: Finch 3 C. B. 347 ; 4 Dowl. & L. P. P. 
V. Duddin, ibid. 1237: Newton v. 185; 15 Law J. N. S. C. P. 262: 
Rowe, 7 Man. & G. 329 ; 8 Scott, N. and see Tidd's Practice, voL 1, p. 
R. 27 ; 2 DowL & L. 80 : Bejnon v. 194, vol. 2, p. 1026, 9th ed. 
Jones, 15 Mees. & WeL 566; 15 (e) Hood v. Matthews, 2 Dowl. 
Law J. N. S. Ex. 303 : and Newton P. C. 149. 

v.Boodle, 16LawJ.N. S.Q.B. 146; (/) Ferguson v. Clayworth, 6 

11 Jar. 628, where the point was Q. B. 269; 2 Dowl. & L. 165 ; 13 

fully considered. Law J. N. S. Q. B. 329 ; 8 Jur. 

(b) Pitts V. Miller, ubi sup. : 709. 

Longstaff V. Rain, «6t mp. : Roberts (p) 15 Mees, & WeL 566 ; 15 Law 
r. Andrews, ubi sup. J. N. S. Exch. 303. 

(c) Rownson v. Williamson, 
Barnes, 207. 

G 2 



84 WHEN TAKEN IN EXECUTION ALONE- 

his judgment, and it is admitted that under such a writ the 
sheriff is bound to take the party against whom the writ is 
directed, whether she be under coverture or not: he is 
bound to do so, not only where she is sued with her hus- 
band, but also where, as in this case, she has been sued 
alone as a feme sole, and has married during the suit, (a) 
Since, therefore, the plaintiff . has a right to take the feme 
covert into execution, and to detain her in satisfaction of 
his debt, it would seem on all principle to follow, that the 
Court cannot interfere to discharge her out of custody, unless 
there be some special circumstances requiring the Court in 
the exercise of its equitable jurisdiction to interfere and pre- 
vent the plaintiff from availuig himself of his legal right. 
But certainly, in modern times, the Courts, where judgment 
has been recovered against husband and wife, and both have 
been taken in execution, have assumed the right of dis- 
charging the wife out of custody, if she has no separate pro- 
perty, on no other ground, apparently, than that it is hard 
to detain in custody a defendant who cannot by law acquire 
property wherewith to satisfy the debt. This, it must be 
admitted, is rather making the law than administering it. 
At the same time, the practice has prevailed so long in the 
case of a judgment against husband and wife, that in such a 
case we should probably not feel ourselves warranted in 
deviating from the ordinary course. But in the case of a 
rightful judgment against a married woman aloney there is 
no decided case authorising the Court in discharging her 
where she has been taken on a ca. sa. ; and there is certainly 
a distinction between that case and the case of a judgment 
against husband and wife. In the former case, the discharge 
of the wife deprives the plaintiff of all possible chance of re- 
covering his debt ; whereas, in the latter, he has still the hus- 
band to whom he may resort. The distinction is not, indeed, 
at all satisfactory. There seems to be no more principle to 

(a) Doyley v. White, Cro. Jac. 623. 



DISCHARGE UNDER INSOLVENT DEBTORS ACT. 85 

warrant the Court in depriving a plaintiff of part of his legal 
right than in depriving him of the whole ; still it may be 
said, that, in one, the practical justice is less than the other; 
and, therefore, although finding the practice established in 
the case of a judgment against husband and wife, we might 
not feel justified in refusing to act, in the case of a joint 
execution, on what must be considered the established prac- 
tice, yet seeing no principle to warrant us, and it being 
admitted that no case can be found in which a married 
woman has been discharged where she has been the sole 
defendant, and has been taken on a ca. sa.^ we do not feel 
warranted in discharging her in this case, and so altogether 
depriving the plaintiff of the fruit of his judgment." 

9. An attachment for nonpayment of costs will not be 
granted against the wife, (a) 

10. A married woman in custody for debt could not be 
discharged under the acts for the relief of insolvent debtors 
which were in force previously to the statute 3 Geo. 4. c. 125, 
those acts having required that the insolvent should, before 
the discharge, execute a warrant of attorney and a con- 
veyance, terms which could not be complied with by a 
married woman. (Jb) But by the statute 3 Geo. 4. c. 123. 
8. 12., which was repealed by the 7 Geo. 4. c. 57., which 
contained similar provisions, the provisions of the insol- 
vent debtors acts were extended to married women. 
And the act for the relief of insolvent debtors now in 
force (a) contains similar provisions. It is enacted that the 
order of the Court vesting the property of the woman in the 
provisional assignee is to operate upon all property real and 
personal to which she may be intitled for her separate use, 
or over which she shall have any power of disposition not- 
withstanding her coverture, or which may be vested in 



(a) Doe d. Allanson v. Garfield, {h) Ex parte Deacon, 5 Barn. & 
6 DowL P. C. 523 : but see Reg. r. Aid. 759. 

Johnson, 5 Q. B. 335 : and in re (a) 1 & 2 Vict. c. 110, sect, 101. 
Kuth Cope, ib. n. 

G 3 



86 DISCHARGE UNDEB INSOLVENT DEBTORS ACT. 

trustees for her benefit, and upon all effects in her actual 
possession, and upon all other real and personal estate and 
effects to which she may be intitled in any manner in pos- 
session, remainder, or reversion ; and the provisions contained 
in the act concerning the real and personal estate of any 
prisoner whose estate shall be vested in the provisional assig- 
nee are to apply to her real and personal estate as if she were 
a feme sole, subject only and without prejudice to the rights 
of her husband : she is also to execute a warrant of attorney, 
under which a judgment may be entered up against her for 
the amount of her debts : the judgment thus entered up is 
not to prejudice the rights of her husband, except that the 
same is to be taken to be her debt in case she shall die in 
his lifetime, to the end that it may be discharged out of her 
personal assets in a course of administration or out of her 
real estate, but without prejudice to the husband's right 
as tenant by the curtesy : in case of her becoming, during 
the coverture, intitled to any property for her separate use, 
the judgment may be enforced against such separate property 
by suit in equity or otherwise, for the purpose of obtaining 
payment of the debts from which she was discharged : in case 
of her surviving her husband, the judgment may be enforced 
against her or her property in the same manner as if she had 
been a feme sole at the time of executing the warrant of 
attorney. Her discharge is not to operate to release the 
husband from the debts. 



EFFECT OF WIFB's ELOPEMENT OR ADULTBBY. 



87 



CHAPTER XXV. 

OF THE WIFE'S POWER OF ENFORCING HER LEGAL OR EQUIT- 
ABLE RIGHTS, WHEN SHE HAS ELOPED OR COMMITTED 
ADULTERY. 



2. Court will not interfere where 
wife appUesfor a favour. 



3. Secus, where she applies for re- 
eonery of a right. 



1. Wb have already considered some of the consequences of 
the wife's abandoning her home, and living in adultery, (a) 

2. Mr. Roper deduces this proposition from the majority of 
the cases, that when the wife unnecessarily elopes from her 
husband, whether she does or does not live in adultery, if 
she apply to a Court of Equity for s^ favour (and not for a 

• righi)^ as for a maintenance out of her property, the interest 
of which her husband is intitled to receive, the Court will not 
interfere in her behalf, {b) 

3. But that if she apply to its jurisdiction for the recovery 
or enforcing of her rights, as for the performance of articles 
before the marriage for a settlement to her separate use ; 
there the Court must interfere, since the law has not made 
elopement or adultery a forfeiture of any such interests, but 
of dower only. 

4. Upon this principle, therefore, notwithstanding the 
loose note of the case of More v. the Earl of Scarborough 
to be found in Equity Cases Abridged (c), and the obiter 
dictum of Lord Hardwicke in Moore v. Moore, after men- 
tioned, he presumes that a Court of Equity cannot, at the 



(a) VoL L pp. 252. 265. 467. 538. 
See also Buchanan r. Buchanan, 1 
BaU & B. 203. 



(6) 2 Rop. H. & W. 134. 
\c) VoL 2. 156, pL 7. 



G 4 



88 EFFECT OF WIFB's ELOPEMENT OR ADULTERY 

suit of the husband, enjoin the trustees of an adulteress 
from proceeding at law to compel payment of her pin- 
money, except upon paying up the arrears ; nor refuse to 
interfere on her part to compel the execution of a settlement 
in pursuance of articles entered into previously to the 
marriage. 

5. In Lee v. Lee, shortly reported in Dickens (a), the 
Chancellor refused in limine to restrain the husband from 
receiving the rents of estates which before the marriage had 
been settled to the wife's separate use ; the reason given by 
his Lordship for the refusal was, that the wife having leift 
her husband without a cause, and refusing to return, the 
motion, if granted, might altogether prevent their future 
cohabitation. The refusal, therefore, was not a decision of 
the question in the cause, but it was made under certain 
circumstances, and with a particular view, viz. to cause a 
reconciliation between man and wife. 

6. The case of Moore v. Moore (&), referred to in Lee v. 
Lee, is one of quite a contrary effect. There 100/. a year 
pin*money were, before marriage, secured by a term for 
years in trustees for the wife's separate use. After twenty 
years' cohabitation in harmony they quarrelled, and she 
left him, and went abroad. Her trustees brought an eject- 
ment for recovering possession of the term, the annuity being 
in arrear. To stay these proceedings, the husband filed a 
bill complaining of his wife's elopement, offering to take her 
back again, and to forgive what was passed; but Lord 
Hardwicke, after observing that possibly the agreement 
before marriage might have been designed to provide for the 
wife if the parties should disagree, and that the husband 
had made payments of the annuity since the wife's elopement 
(a strong presumption that he thought at least her separa- 
tion was excusable), ordered the arrears of the pin-money to 
be paid, with costs ; and, upon payment and keeping down 
the growing payments of the annuity, his Lordship con- 

(a) Pages 321. 806. (b) 1 Atk. 276i 



ON HEB LEGAL OB EQUITABLE BIGHTS. 8& 

tinned the injunction which had been obtained by the 
husband. 

7. The right of the wife to call upon a Court of Equity 
to enforce her equitable interests, although she may have 
left her husband, and also have added to that impropriety 
the crime of adultery, appears to be established by the two 
following cases. 

8. In Sidney v. Sidney (a), the wife by her bill prayed 
the specific performance by the husband of his agreement 
in articles made before marriage, in which he covenanted to 
convey estates to the use of himself and wife for their lives 
in succession, &c. ; and she, a minor, with consent of 
guardians, covenanted to settle her estates as therein 
mentioned. The husband stated in his answer, that his 
wife had withdrawn herself from him, and very much mis- 
behaved herself. There was strong evidence of her criminal 
conversation with another man, and there was also some 
proof of the husband's adultery ; yet the wife obtained a 
decree for a specific performance at the Rolls, from which 
the husband appealed to Lord Talbot, who confirmed the 
decree, observing that the answer did not sufficiently put 
the fact of adultery in issue (&), and he therefore could 
not decide upon it ; that articles for a jointure were con- 
sidered in equity as an actual and vested jointure ; and that 
it was not forfeited either by the wife's elopement or 
adultery, and that the reason why she loses her dower by 
committing adultery, is from the efl^ect of the statute of 
Westminster the 2nd. (c) 

9- The second case is Blount v. Winter, {d) There were 
two bills filed, the one by trustees in marriage articles, and 
the children of the marriage against husband and wife ; and 
the other by the husband against his wife and children. 
The first bill prayed a performance of the articles ; and the 

(a) 3 P. W. 269» (</) Stated in a note, 3 P. W. 

{b) 1 Atk. 276. 277 : S. P. Sengrave v. Seagrave, 

(c) Chap. 24. 1 3 Ves. 444. 



90 EFFECT OF WIFS'S ELOFESCENT OB ADULTERY. 

husband by his answer, and also by his own bill, resisted 
the performance, so far as the articles made a provision for 
his wife, alleging and proving that she Uved separate from 
him in adultery. The Court was of opinion that this was 
no reason for a non-performance of the articles as to the 
wife, and decreed accordingly in the first cause, and dis- 
missed the husband's bill, but without costs. 

10. Upon these authorities Mr. Roper concludes (a), that 
the wife's elopement only, or her elopement and adultery, 
do not deprive her of the power of enforcing any of her 
legal (b) or equitable rights, with the exception of her right 
to dower. 



(a) 2 Bop. H. & W. 137. 121 : Bajnon v. Batlej, 8 Bing. 

[b) Field v. Serres, 1 New Eep. 256 ; 1 Moo. & S. 239. 



91 



BOOK THE SECOND. 

OF CERTAIN RIGHTS ACQUIRED BY THE HUSBAND OR WIFE 

BY SETTLEMENT OR CONTRACT. 



CHAPTER I. 

OF THE HUSBAND'S INTEREST IN HIS WIFE'S CHOSES IN ACTION 
AS A PURCHASER, BY MAKING A SETTLEMENT UPON HER. 



SECTION L 

IN WHAT CASES AN ANTENUPTIAL SETTLEMENT WILL INTITLE 
THE HUSBAND TO HIS WIFE'S CHOSES IN ACTION. 



2. Husband not inHtUd unless 

{igreement expressed or tm* 
plied, 

3. Only iniitled to extent of agree' 

ment. 

17. Rule laid down by Mr. Roper. 

18. Not necessary that settlement 

should be adequate to wife*s 
fortune. 



19. Where husband or his assignees 

must perform stipulations on 
his part before receipt of wtf^s 
fortune. 

20. Effect where husbands covenant 

future and contingent. 

21. Where present and certain. 

22. Whercj though future, it can be 

performed. 



1. We have already noticed that on marriage, the wife's 
choses in action are not absolutely vested in the husband, 
and that where they are not received by him or his assignees 
in his lifetime, or in certain cases released, they survive to 
the wife. The husband may, however, as a- purchaser acquire 
the sole and absolute interest in his wife's choses in action, 
whether immediately recoverable or in expectancy, although 
she survive him, by making a settlement upon her previously 
to the marriage. 



92 HUSBAND NOT INTITLED WITHOUT 

2. But a mere settlement upon marriage will not intitle 
the husband to his wife's fortune. There must be an agree- 
ment for the purpose, either expressed or implied. 

3. And if the stipulation be for a part only of her property, 
that necessarily excludes the residue ; so, if the agreement 
extend to the whole of the fortune she was then intitled to, 
her husband will not be intitled to any personal estate which 
may accrue to her during the marriage. 

4. However, in Blois v. Hereford (a), a provision by settle- 
ment was made for the wife, and no notice was taken of her 
personal estate ; and yet a decree was made, in favour of her 
husband's representative, against her title by survivorship ; 
the Lord Keeper observing that, in all cases where there was 
a settlement equivalent to the wife's portion, it was to be in- 
tended that the husband was to have the portion although 
there was no agreement for the purpose. 

5. But this decision was shaken by Lords Commissioners 
Bathurst and Aston, in the case of Salwey v. Salwey (6), ob- 
serving that this was a strange report. And in Druce v. 
Dennison (c) Lord Eldon said, that according to the modern 
cases, it is established that the settlement, to be the purchase 
of the wife's fortune, must either express it to be for that 
consideration, or the contents of the settlement altogether 
must import that, and plainly import it as much as if it were 
expressed ; that such was the result of the cases upon the 
subject, and that it was not worth while to consider in what 
respect the older cases were unsatisfactory ; involving in- 
quiries not very easy to execute. 

6. The case of Salwey v. Salwey was to this effect — 
The wife was intitled to a rent-charge of 300Z. under her 
marriage settlement, and she having survived her first hus- 
band, took another ; but previously to the second marriage a 
settlement was made, by which, in consideration of such in- 



(a) 2 Vern. 501. {c) 6 Ves. 395. 

[b) Ambl. 692. 



EXPRESSED OB IMPLIBB CONTRACT. 93 

tended marriage, and for providing and settling a competent 
jointure and maintenance for her, and for making a proper 
provision for the children of the marriage, certain estates 
were conveyed to trustees for those purposes. A further 
settlement was made by the husband'of 4000/. The husband 
died before the wife; at which time an arrear of 1098/. 
being due in respect of the rent-charge, a question arose, 
whether the wife was or not intitled to it ? And it was de- 
termined in her favour, as having survived her husband, upon 
the principle that a mere settlement upon marriage was 
insufficient to raise a gift to the husband of his wife's personal 
estate, but that in order to intitle him to it there must be an 
agreement, either express or implied. 

7. In another case (a) it appeared that the wife had lands 
of the value of 700/., and also 500/. due to her upon bond, 
which at the time of her marriage remained in her brother's 
hands. Her husband, before their marriage, made a settle- 
ment, and in consideration of a considerable fortune and 
portion with his then intended wife, he granted, &c., but of 
what particulars her fortune or portion consisted, did not 
appear by the settlement. The question was, whether the 
bond for 600/., being a chose in action, and not called in by 
the husband during his life, was assets in equity to satisfy a 
debt of the husband, the wife having enjoyed the benefit of 
the settlement made upon her out of the husband's estate, 
and which would have been liable to the demand ? It was 
insisted for the creditor, that if the bond debt had been par- 
ticularly mentioned as part of the consideration for the 
settlement, there would have been no doubt of its being 
assets of the husband ; for in equity, the husband is a pur* 
chaser of it by making the settlement ; and that there was 
no diflference where the consideration was general of the 
wife's portion, especially in this case, where she had nothing 
but lands besides the bond for 500/., so that the bond 

(a) Heaton r. Hassell, 4 Yin. Abr. p. 40, pi. 1 1. 



94 HUSBAND NOT INTITLED WITHOUT 

must be taken as the consideration of the settlement (there 
being none other), and the rather in favour of a fair creditor, . 
who otherwise must lose his debt, and if no settlement had 
been made, might have had a satisfaction out of the lands. 
But per Parker, Chancellor, " The case is so very clear that 
the widow's counsel need not to argue it. In this case 
creditors cannot be in a better condition than the executor 
of the debtor ; and can it be imagined, that if any other per- 
son had been made executor to the husband, and such a per- 
son had filed a bill against the wife to compel her to assign 
this bond, that the Court would have decreed for the executor? 
What the law gives the husband by the intermarriage is a 
good consideration for making a settlement ; but the hus- 
band's making a settlement does not invest in him the 
choses in action of his wife, unless it be expressly so agreed 
between the parties, and that appears to be part of the con- 
sideration of the settlement, for then the husband is a pur- 
chaser, and well intitled to them in a Court of Equity." 
His Lordship therefore decreed that the 500Z. secured by 
the bond were not liable to the demand of the husband's 
creditor. 

8. Again, in Adams v. Cole (a), the husband, having no 
property of his own, by an obligation given by him to trus- 
tees, reciting that his intended wife's fortune amounted to 
about 500/., agreed to pay to her 10/. annually for her sepa- 
rate use, and that if he survived her she should have the 
power to dispose by will of 100/., her wearing apparel, watch, 
rings, and jewels ; but if she happened to b? the survivor, 
then he stipulated to leave her 200/., and all her wearing 
apparel, &c., to be at her sole disposal ; and for better se- 
curing the premises, he agreed, upon request, to settle lands 
of the yearly value of 12/. The wife being intitled to a debt 
of 200/., secured by bond given to her dum sola, the question 
was, between the surviving wife and the residuary legatee 

(a) Forrest. 168. 



EXPBESSED OR IMPLIED COKTBACT. 95 

of the husband, whether this bond debt, as a chose in action, 
and not reduced into possession by the husband, was the 
property of her, or of the residuary legatee ? And Lord 
Talbot determined in jEayour of the latter. 

9. It must be remarked upon the above case, that the 
husband settled nothing of his own, the provision was en- 
tirely out of the wife's property, and she agreed to take a 
part of it in certainty, rather than to run the risk of losing 
the whole by her husband's receipt of it during the marriage. 
Here, therefore, was a contract between them to divide her 
fortune in manner before mentioned, so that the husband 
became the purchaser of the bond debt for 200?. 

10. In another case (a), a woman at the time of her 
marriage was intitled to 300/. as a portion, in her brother's 
hands, secured by his bond: a settlement of a farm was 
made upon her for her jointure by the husband's father and 
grandfather, which settlement was expressed to be made in 
consideration of 100/. paid to the grandfather as the wife's 
marriage portion, which was accordingly paid by the brother. 
Question, whether the wife, surviving her husband, was 
intitled to the remainder of the bond debt ? And the Chan- 
cellor, on appeal from the RoUs, was of opinion in favour of 
the wife, unless it appeared upon a trial at law, which was 
directed, that the husband was intitled by agreement to the 
remaining 200/. 

This case is clearly distinguishable from Adams v. Cole : 
there it appeared from the recital that the whole of the 
wife's fortune was the subject of agreement ; here it is appa- 
rent that the husband stipulated for no more of it than 
100/., so that it remained as if no settlement upon the wife 
had been made. 

11. The following, although a peculiar case, still esta- 
blishes what has been before stated, that contract or agree- 
ment is necessary to intitle the husband to his -Nvife's choses 

(a) Cleland v. Cleland, Pre. Ch. 63. 



96 HUSBAND NOT INTITLBD WITHOUT 

in action. Upon the marriage of A with B, his wife, a settle- 
ment was made in consideration of the marriage, and as well of 
the then present fortune and portion of B, as the covenants 
thereinafter contained to be performed, and for settling a 
competent jointure upon B. One of the covenants was by C, 
B's mother, that she would pay to A 200Z., as an addition to 
B's fortune. The other covenant was by B's trustees, that 
C would, for the consideration aforesaid, during her life, or 
by her will, give or bequeath to her daughter B, her exe- 
cutors or administrators, or some child or children of B, 
money or lands equal to what C should give to her other 
children. C left her a legacy and appointed her executrix. 
Part of C's residuary estate came to B by lapse, and B sur- 
vived A, her husband. Question, whether the surplus of 
C's estate that arose either by bequest under C's will, or by 
accidental intestacy, as by lapse, survived to the wife, or be- 
longed to the husband ? which depended upon this, whether, 
under the above settlement, A was to be considered as a 
purchaser of B's choses in action, which she might become 
intitled to during the marriage. Lord Hardwicke said, 
^* The case and the settlement are very particular. The 
consideration is not merely the marriage and present portion, 
but further also the covenants contained in such settlement. 
If the additional 200Z. in the first covenant had not been 
paid at the husband's death, his executors would be intitled 
to it. The other covenant is very particular, and differs 
from the former as to the covenantees as well as to the 
persons to whom to be left. Here it is not only to the wife, 
but also to any child of the marriage* How then can I say, 
that by this covenant the husband is a purchaser? The 
mother might have left it to the separate use of the wife, or 
to any children of the marriage, which would have been a 
performance of the covenant, so that it is not a covenant 
inserted for the benefit of the husband, but of the daughter, 
and the issue of the marriage. Since, then, she might have 
left it in this manner, and has left part to her daughter, and 



EXPRESSED OR IMPLIED CONTRACT, 97 

the other part has come to the daughter by accident, and 
no contract to give the husband a certain right in this at 
all, it must be considered on the foot of a general legacy to 
the wife, abstracted from the contract; not such as the 
husband would be intitled to in all events by way of con- 
tract, but such as must go by the general rules of law and 
equity by survivorship, according to which, what the hus- 
band had reduced into possession will go to his executors, 
and the rest will survive to his wife." (a) 

1 2. In Burdon v. Dean (J), the wife being intitled to 1000?. 
under her father's marriage settlement, it was prior to her 
marriage settled thus ; 500/. of it were to be paid to the 
husband, and the residue to be settled upon herself and 
children. The wife being intitled to t)ther property, no 
notice was taken of it in the settlement. The husband 
having become a bankrupt, the question was, whether she 
was intitled to a provision out of such other property as 
against the assignees, or was barred by the provision made 
for her by the settlement? And Lord Alvanley decided 
that the settlement did not bar her right to a provision out 
of her other property. The reason must have been, that 
lOOOZ., part only of the wife's fortune, were in contemplation 
of the parties when the settlement was made ; so that there 
was no contract or agreement that, in consideration of the 
husband's relinquishing his legal power over 500Z., part of 
such fortune, he should be intitled as a purchaser to all the 
residue of it, but to the 500L only, remainder of the 1000?. 
to which the wife was intitled under her father's settlement 
as above. 

13. In the case of Lady Elibank v. Montolieu (c), it ap- 
peared that the settlement was not intended to make the 
husband a purchaser of his wife's future property, the pro- 
vision made in it for her being upon the expectation that 
from circumstances to occur in the family there would be an 

(a) Garforth v. Bradley, 2 Ves. (b) 2 Ves. Jun. 607* 
Sen. 675. (c) 5 Ves. 737. 

VOL. n, H 



98 HUSBAND NOT INTITLED WITHOUT 

opportunity for doing better for her at a future preiod. The 
wife, therefore, having, after the settlement, become intitled 
to a considerable share of personal property, the Court 
ordered at her suit an additional provision to be made for 
her and her children. 

14. In Druce v. Denison (a). Lord Eldon's opinion coin- 
cided with the decision of the Master of the RoUs in Burdon 
V. Dean ; and his Lordship determined that a settlement by 
the husband, on his marriage with his wife, in the event of 
her surviving him, of considerable sums in government se- 
curities for her own use, with a covenant to secure to her an 
annuity for her life, did not intitle the husband to her choses 
in action to which she was then intitled, as the settlement 
expressed or imported no agreement that by making such 
provision he should have them ; consequently, they survived 
to her, outliving her husband. But he having by his will 
made bequests in her favour, and treated her choses in action 
as his own, and bequeathed them as such, as appeared from his 
books and certain papers which were given and admitted in 
evidence, the question terminated in that of election, so as to 
put the widow to elect whether she would give up her choses in 
action and take under the will, or whether she would surrender 
her benefits under that instrument, and retain her own property. 

15. Another case upon this subject is Mitford v. Mit- 
ford (b): there it appeared from the settlement, that the 
wife had given up to her husband a considerable part of her 
fortune, who in consideration of such fortune covenanted to 
make a provision for his wife and children : and Sir William 
Grant said, (what has been proved by the above authorities,) 
that the mere fact of a settlement is not evidence that the 
husband became a purqhaser of all the fortune that might 
afterwards come to the wife ; that the settlement in that 
case appeared to be in consideration of her fortune as spe- 
cified and described in the deed itself, part of which was 

(a) 6 t'es. 385. (6) 9 Ves. 89. 



EXPBESSED OR IMPLIED CONTEACT. 99 

settled and part paid to the husband, so that he could not 
be considered a purchaser of anything more than the fortune 
she then had. 

16. Consistently with this doctrine, his Honour decided 
the case of Carr v. Taylor (a) : there the consideration of the 
settlement was expressed to be the portion or fortune which 
the husband would have or receive upon his marriage. The 
wife afterwards became intitled to a share in the residuary 
estate of an intestate, part of which consisted of a bond debt 
due from the husband and his father. The husband having 
become a bankrupt, the question was, whether the wife was 
intitled to an additional settlement out of the property ac- 
crued to her after the date of her marriage settlement ; which 
could not be, if, by such settlement, the husband had pur- 
chased for his own benefit all subsequent property to which 
his wife might become intHled during the marriage. The 
Master of the Rolls decided, that as the settlement might be 
construed to mean either the fortune which the husband 
would actually receive at the moment of the marriage, or 
the rights he would acquire by the marriage, and as the latter 
intention was neither expressed nor clearly imported in such 
settlement, its operation should be confined to the wife's 
property at her marriage ; so that her husband was not a 
purchaser of her after-acquired personalty, and consequently 
that she was intitled against his assignees to an additional 
settlement out of it. 

17. From die above cases Mr. Roper deduces the following 
propositions (b): — 

First, That a settlement made before marriage in con- 
sideration of the wife's fortune, without saying more, intitles 
the husband to all her then personal property, and not to 
such which afterwards accrues to her. 

(a) 10 Ves. 574 : see Beresford v. broke, 2 Ves. Sen. 591 : see also 
Hobson, IMadd. 371: also the older Fairer v. Grant, 7 Law J. Chan. 
cases upon this subject, Adams v, 95 : and Corsbie v. Free, 1 Cr. & 
Pierce, 3 P. W. 11 : March v. Head, PhWr2. 
3 Atk. 720 : fad Tomkyns v. Lad- (b) 1 Rop. H. & W. 298. 

H 2 



100 WHERE COVENANT TO BE PERFORMED BY HUSBAND. 

Secondly, That if a part of her fortune only appear to be 
stipulated for, the residue which she then has, or what may 
afterwards accrue to her, will not belong to the husband. 

Thirdly, But when it appears from the settlement, that it 
was the agreement between the parties that he should not 
only have his wife's then present, but all her subsequently- 
acquired personal estate, he will in such cases be intitlcd to 
the whole under the marriage contract. 

And lastly, that, in instances where any of the wife's choses 
in action are not purchased by the husband by settlement, 
they will be subject to her rights of survivorship, and of 
provision by settlement, which have been before considered. 

18. It is presumed that the Court will not take into 
consideration whether the settlement made by the husband 
is or is not adequate to the wife's fortune, (a) 

19. It must, however, be noticed, that when the husband 
is a purchaser by settlement of his wife's choses in action, if 
the provision for his wife and children be executory, i. e. 
resting upon his covenant, then neither he nor his assignees 
will be intitled to recover them in equity until they have 
specifically performed the stipulations in the settlement, (b) 

20. If, however, the covenant be future and contingent^ 
as that his executors should, after his death, if his wife 
survived him, pay to her a sum of money, there, as the act 
to be done in performance of the covenant is contingent and 
may never happen, and his right to her choses in action by 
purchase under the settlement is immediate and absolute, the 
Court cannot postpone his title to receive them until he 
perform such an act as he engaged to do by such a cove- 
nant, (c) 

21. But when the husband's covenant to pay or settle 
amounts to a present and certain obligation, as to do the act 

(a) Lannoj v. Athol, 2 Atk. 448. v. Ck>nie, 2 Yern. 190 : Holt v. Holt^ 

(6) Pyke V. Pyke, 1 Ves. Sen. 2 P. TV. 648. 

376: and see Lister v. Lister, 2 (c) Basevi v. Serra, 14 Yes. 313 ; 

Yern. 68 ; 2 Freem. 102 : Howman 3 Mer. 674. 



VALIDITT OF ANTENDPTfAL .fiETII-EMENTS. 



101 



immediately, or at a fixed period, theil •tte-J wife has a lien 
upon her own property for the consideration'.e^eed to be 
given by the husband for its purchase, which miiaC J&e puid 
or settled before the Court will take from her such-^roK**. 
perty. (a) **-V 

22. And this will be the case where the covenant to pay 
is future or conditional, if the time is arrived when it is to 
be performed, (b) 



SECTION IL 

OK THE VALIDITY OF ANTENUPTIAL SETTLEMENTS AGAINST 
CREDITORS AND PURCHASERS, AS CONNECTED WITH THE 
HUSBAND'S TITLE AS A PURCHASER OF HIS WIFE'S PRO- 
PERTY. 



2. Valid against creditors and 
purchasers. 

4. Unless where fraud, 

5. Void under 27 Eliz, against 

purchasers far valuable con' 
sideration where general power 
of revocation reserved. 

6. Statute does not extend to per* 

sonal estate, 

7. fVhat will be valuable consider^ 

ation within act 



8. Void where power of revocation 

with consent of other persons 
if under control of settlor. 

9. Valid if consent required of 

persons not under control of 
settler, 

10. Or though powers reserved to 

charge estate. 

11. Unless where such powers are 

reserved by fraud. 



1. We shall now proceed to the subject of the validity of 
antenuptial settlements against creditors and purchasers. 
This is a point which materially concerns the husband's title 
which has been considered in the preceding section, for if 
the provision made by the husband be taken away from his 
wife, his title as a purchaser to her equitable property must 
fail, and her rights in her own choses in action will remain 



(a) Mitford v. Mitford, 9 Ves. 96. (6) Corsbie v. Free, 1 Cr. & Pli. 64. 

H 3 



'• • • 



102 WHERE AUTEiaJFliAL SETTLEMENTS VALID 

• • • 
•• • • • 

the same, in 4r^gicr*d* to him, as if no such settlement had 
been mftdS.'../ 

/ujcj^^s., ^^ Wit& respect to the validity of antenuptial settlements 

. .''fg^&st creditors, &c., it is established that a settlement, 

.. '-'y/^onA fide made before and in contemplation of marriage, is 

* ' ' '* good not only against the husband, but against his creditors 
and subsequent purchasers. 

3. The efficacy of the consideration of marriage is strongly 
demonstrated in the following case : — A, previously to and 
in contemplation of his marriage with B, and in order to 
make a provision for himself and wife, and with a view of 
withdrawing out of the reach of his creditors a considerable 
part of his property, transferred at various times before the 
marriage into her name several sums of stock, and invested 
monies in her name ; all which, as it was stated in the bUl, 
were not his own property, but that of other persons who 
had employed him as a stockbroker, and that the fact was 
well known to B» The marriage took place in the year 
1805, and between that year and 1802 preceding, various 
deeds and settlements were executed by A in favour of B, 
containing (as it was alleged) false statements of property 
belonging to B (which in fact never did belong to her), 
with the intent to defeat the husband's creditors ; and with 
the like view, sums in stock, amounting to 6200Z. annuities, 
were, in the settlement made shortly before the marriage, 
recited, contrary to the truth, as belonging to her, and the 
same with other property were settled to her separate use 
for life, with an absolute power of disposition. B having 
survived her husband, his creditors attempted to defeat the 
above transactions and settlement upon the ground of fraud, 
but which was not proved, and was denied by B. Sir William 
Grant, M. R., decided against the creditors, because it was 
immaterial whether the stock was, as recited, purchased with 
the wife's money or not ; for, if it were the husband's, he had 
a right to settle it in contemplation of marriage, which settle- 
ment could not be defeated by his creditors ; and that the fact 



AGAINST CREDITORS AND PURCHASERS. 103 

of his being indebted at the time, and of B's knowing it, would 
not affect the validity of the settlements : and his Honour 
thought, that the mis-recital of the property being the wife's 
when it was her husband's did not necessarily imply fraud, 
since he might choose to adopt that mode in giving her 
the property, (a) 

4. Fraud, however, will vitiate an antenuptial settle- 
ment, (b) 

5. The statute of the 27th of Elizabeth (c) avoids convey- 
ances of lands, tenements, and hereditaments against sub- 
sequent purchasers for a valuable consideration, when a 
general power of revocation is reserved to the settlor. And 
it was holden in St. Saviour's case (d), that notwithstanding 
the consideration of marriage was a good consideration, yet 
if a power of revocation were annexed to the settlement, it 
was void against strangers. Hence it appears, that if such 
a power be contained in an antenuptial settlement of real 
property, it will be void against a subsequent purchaser; 
and the effect will be the same, although the husband had 
released or extinguished his power before he made the 
subsequent sale, (e) 

6. But the statute merely extends to " lands, tenements, 
and hereditaments," and not to personal estate. (/) 

7. The valuable consideration mentioned in the act need 
not to be money. If, therefore, a person give up a right 
which he had for the property, such surrender would be a 
valuable consideration within the statute, (g) 

8. When the power of revocation is not general and un- 

. (a) Campioii v. Cotton, 17 Ves. (/)Billr. Cureton,2M.&K512. 

263. Ig) Hill v. Bishop of Exeter, 2 

{b) See ex parte Major, Mont. Taunt. 69 — 83 : and Ward v. Shallet, 

Rep. 292. 2 Ves. Sen. 17. As to the persons 

(c) Cap. 4. sect. 5. who are considered purchasers so as 

(d) Lane, 21, 22. to be intitled to the benefit of this 

(e) 3 Rep. 83 ; and Bullock v. statute, see Sugden on Powers, 
Thome, Moor's Rep. 617, S. P. chap. 13, sec. 9. 7th ed. 

a 4 



104 EFFECT WHERE POWER OP REVOCATIOK, 

qualified, but the exercise of it is made to depend upon the 
consent of other persons, then if such persons be in the 
interest or under the control of the settlor, the settlement 
will be void against a subsequent purchaser, as in Lavender 
V. Blackstone. (a) There the husband reserved to himself a 
power to make leases of all or any part of the premises, with 
the consent of A and B, trustees of his own nomination, for 
any number of years, with or without rent ; and the Court 
held the reservation to be fraudulent, by enabling him to 
defeat the settlement in toto ; the restriction being nothing, 
as the trustees were of the settlor's own appointment, and 
therefore to be presumed to act according to his wishes, {b) 

9. But if the exercise of the power be made to depend 
upon the consent of persons not in the interest or under the 
control of the settlor, the settlement will be valid against a 
subsequent purchaser, as it was determined in BuUer v. Water- 
house (c) ; because such a case is not considered within the 
meaning of the statute, the settlor not having the sole power 
of defrauding the purchaser by the exercise of the prior re- 
served power. Hence the usual powers in settlements to 
revoke the uses or trusts of the lands, for the purposes d£ 
sale and exchange, with a direction that the money should be 
paid to the trustees to be reinvested (rf), will not avoid the 
settlement against a subsequent purchaser of the husband. 

10. Neither are powers bondjide reserved to charge sums 
of money upon the estate within the letter or meaning of the 
statute, (e) 

11. We must except, however, such powers of charing, 
&c. as are reserved fraudulently, as when the husband 
retains or reserves to himself so large an interest or power 
over the property as to show the motive of the transaction 

(a) 2 Lev. 146. (d) Doe v. Martin, 4 Term Rep. 

lb) See Griffin v. Stanhope, Cto. 39. 

Jac. 454. (e) Jenkins «. Keymis, 1 I^y* 

(c) 3 Eeb. 751 : Jones, 94 s see 150—152. 
Hungerford v. Earle, 2 Freem. 120. 



OB FOWEB TO CHABGE BESEBVED. 105 

to have been to defeat creditors or purchasers, for in such 
cases those powers will be considered as amounting in eflfect 
to a power of revocation, and therefore invalidate the set- 
tlements containing them, (a) 

12- Thus, in Tarback v. Marbury (J), the defendant 
having reserved to himself a power during his life to granti 
alien, or otherwise dispose, at his will and pleasure, of the 
estate comprised in the deed ; the Court held that, as the 
defendant might have charged it to the full value^ the reser- 
vation amounted in effect to a power of revocation, and 
therefore that the settlement was fraudulent. 

13. But it appears from the case of Jenkins v. Keymis (c), 
which has been before referred to, that if such a power to 
charge the property be fairly reserved, and from the magni- 
tude of the sum when compared with the value of the estate 
no presumption of fraud arises, it will not defeat the settle- 
ment at the instance of the purchaser. 

(«) 3 Keb. 527 : 1 Atk. 16. (c) 1 Lev. 150—152. 

{b) 2 Vera. 510 



106 



HUSBAND NOT FUBCHA8EB OF W1FE*S 



SECTION nL 

WHETHER SETTLEMENTS MADE AFTER MARRIAGE WILL 
RENDER THE HUSBAND A PURCHASER OF HIS WIFE'S CHOSES 
IN ACTION. • 



1. Husband not a purchaser of 
wife's fortune by postnuptial 
settlement, 

3. Sykes y. MeynaL 

4. Mr. Jacob's remarks thereon. 



7. Why postnuptial settlements not 

binding on wife. 

8. Wife may contract with hus- 

band where she has separate 
property* 



1. The settlements which have been under consideration 
were those only that were made previously to marriage, at 
a period when the parties were able to contract with each 
other. If, then, as it has been shown, actual agreement or 
contract be necessary to give to the husband his wife's choses 
in action, in consideration of the provision made by him for 
her, it appears to be a necessary consequence, that a settle- 
ment made after the marriage by the husband upon his 
wife, even upon an accession of fortune to her (not given to 
her separate use and disposition) where tlie transaction is 
between themselves only, and the Court does not act for the 
wife, will not constitute the husband a purchaser of such 
additional fortune, but the wife's title by survivorship will 
prevail. 

2. Thus, in Lannoy v. Duke and Duchess of Athol (a), 
it appeared that the husband, by second settlement, made 
during the marriage, in consideration of a large sum of 
money to which the wife became intitled upon her father's 
death, in addition to securing a rent-charge to her included 



(a) 2 Atk. 448, ed. by Sanders. 



PROPEBTT BY POSTNUPTIAL SETTLEMENT. 107 

in the first settlement, provided 6000Z. for the portions 
of daughters in default of issue male, so that there was 
no provision for the wife other than what she was in- 
titled to under the first settlement. The wife having sur- 
vived her husband, the question was, whether the second 
settlement intitled his representatives to the accessional 
fortune of the wife? And Lord Hardwicke decided that 
it did not: first, because there was in fact no additional 
provision made for her by it, and that the portions for 
daughters had nothing to do with the general rule of a settle- 
ment equivalent to the fortune the father had with the 
mother; and, secondly, and chiefly, as his Lordship ex- 
pressed himself, because there was no contract on the part 
of the wife, who was herself incapable of contracting, and 
had neither father nor guardian to contract for her. (a) 

3. However, in Sykes v. Meynal (J), where the second 
husband, after marriage, made a settlement upon his wife. 
Sir Thomas Clarke decreed, that her husband was intitled 
by it to a mortgage debt owing to her, and not reduced into 
possession during his life, although she was the survivor. 

4. But upon this case, Mr. Jacob remarks (c): "The 
wife was intitled to a mortgage under the will of her first 
husband. Her second husband, after the marriage, settled 
on her for life, by way of jointure, lands valued at 4001. per 
annum. The settlement was recited to be in consideration 
of the marriage, of his love and aflFection for her, and of a 
marriage settlement previously made of lands belonging to 
her, and of a very considerable fortune had and received by 
him with her in monies and securities for money. After 



(a) It does not, however, appear (b) 1 Dick. 868. ; Beg. Lib. B, 
that the sanction of the wife's father, 1762, fo. 440. : the decree is entered 
^ardian, or trustee could give any under the name of Sjkes v. Holden. 
additional effect to the settlement as (c) 1 Rop. H. & W, 304 n. 
against her in the event of her sur- 
viving, Stamper v. Barker, 5 Madd. 
157. 



108 WHERE POSTNUPTIAIi SETTLEMENTS 

his death she entered upon the jointure lands, and she and 
her third husband continued in the possession of them. 
The circumstance that the wife enjoyed the jointure ex- 
pressed to be made in consideration of her fortune, distin- 
guishes this case from that of Lannoy v. Duke of Athol, 
where no additional provision was made for her. The wife 
electing after her husband's death to accept benefits given 
by the settlement, is of course bound to confirm it in other 
respects." 

5. It is therefore presumed that, notwithstanding Sykes 
V. Meynal, a settlement after marriage will not bind the 
wife, or intitle her husband to her choses in action, unless 
such settlement be confirmed by her after her husband's 
death, or unless it be confirmed under a decree in equity 
during his life, or another settlement directed and ap- 
proved of. 

6. In Sykes v. Meynal, his Honour referred to two cases 
as warranting the decree : one of them was that of Lannoy v. 
Athol, which has been just stated, but which it is presumed 
has a contrary tendency. The other case was Jones, v. 
Marsh (a), which seems to be equally inapplicable, the 
question in it being not whether the wife could contract 
with her husband to pass to him her choses in action, but 
whether a settlement upon her in consideration of an ad- 
ditional fortune coming to her from her mother, was or was 
not valid against subsequent creditors of the husband. 

7. The ground upon which settlements after marriage 
are not binding upon the wife, is the general principle 
that, considering the relation between man and wife, and the 
opportunities which he has of practising upon her affection 
and fears, so as to take undue advantage, the law throws 
around her a shield of protection, and disables her from con- 
tracting personally with him relative to her property, except 
according to the forms which it has prescribed, (b) 

(a) Forrest. 64. (b) See 2 Vea. Sen. 17. 



AKB BINDING UPON WIPE. 109 

8, This doctrine, however, must be confined to cases 
where the wife is not placed in the character of a feme sole 
in relation to her property, for in that character (as it will 
be afterwards shown) she may dispose of it as she thinks 
proper, and contract concerning it with her husband, for his 
or her benefit, as she pleases. 

To such the wife's power only, it is presumed that Lord 
Eldon's observation in Lady Arundell v. Phipps (a) applies. 
In this case his Lordship, alluding to that of Dewey v. 
Bayntun (J), said, " From the only account I have had 
of this case, it appears to have been asserted that a husband 
and wife could not, after marriage, contract for a bond fide 
and valuable consideration for a transfer of property from 
him to her of trustees for her. The doctrine is not so 
either here or at law." The contract in both cases was 
a purchase by the wife with her separate property, or over 
which she had a sole and separate power of disposition, 
of ancient pictures, furniture, and other articles of great 
value belonging to her husband ; and it was on the question 
as to its validity against the husband's creditors, that Lord 
Eldon thus expressed himself. 

(a) 10 Ves. 148. {b) 6 East, 257. 



110 SETTLEMENTS IN PURSUANCE OF ARTICLES BEFORE 



CHAPTER IL 

OF THE WIFE'S RIGHTS AGAINST HER HUSBAND'S CREDITORS, 
WHERE HE HAS MADE A SETTLEMENT UPON HER AFTER 
MARRIAGE. 



1. Postnuptial settlement binding 

on husband, 

2. And against creditors^ if in 

pursuance of articles before 
marriage. 

3. Effect where made in pursuance 

of verbal agreement before 
marriage: Mr, Boper*s opi- 
nion. 

4. Mr. Jacob's remarks, 

5. WJiere husband fraudulently 

prevents agreement from being 
in writing, 

6. Agreement founded on letters or 

notes, 

7. Postnuptial settlement void 

against purchasers for value 
even with notice, 
9, Only void against creditors 
where fraudulent 

10. Debts due at time of settlement 

presumption of fraud, 

1 1 . Debts subsequently incurred will 

not defeat postnuptial settle^ 
ment, 

12. Recital in postnuptial settlement 

of antenuptial articles whether 
binding on creditors, 

1 3. Settlement void against creditors 

where debts considerable, 

14. Not where of small amount, 

15. Lush V. Wilkinson. 

16. Townsend r, Westacott: rule 

laid down by Lord Langdale, 
7. Settlement not void where, 
though considerable debts due, 
they are secured. 



18. 
19. 

20. 
21. 

22. 

23. 
24. 
27. 

28. 
29. 

30. 

31. 

32. 

33. 
35. 



38. 
40. 



41. 
42. 
43. 



Or where their payment is 

provided for. 
Mights of subsequent creditors 

against voluntary settlement 
Mr. Jacob's remarks. 
Mule laid down by F.-C Knight 

Bruce, • 

Whether settlement merely of 

stock liable to creditors, 
Mr, Moper's opinion, 
Mr. Jcuiob's observations, 
Effect of such settlement where 

settlor insolvent. 
Norcutt r, Dodd, 
Postnuptial settlement defeated 

where debts contingent only. 
Good against settlor and volun^ 

teers. 
Void if made in contemplation 

of contracting debts. 
Effect of reservation of general 

power of revocation. 
Or power over fund. 
Settlement void where settlor 

continues in possession, unless 

possession consistent 
Where possession apparently 

consistent by fraud. 
Where postnuptial settlements 

valid against creditors and 

purchasers on ground of valu" 

able consideration. 
Settlements made by Court of 

Chanceiy. 
Where money paid on wifis 

behalf. 
Or secured to be paid. 



MABBIAQS BINBINQ ON CBEBITOBS ANB PURCHASERS. Ill 



44. Where whole of wifa^s property 

settled and husband settles 
nothing, 

45. Accession of fortune to wife 

good consideration to support 
settlement 

46. But settlement must not greatly 

exceed wife^s fortune, 

47. Relinquishment of valuable in* 

terest by wife will be consider' 
ation. 



48. As her jointure. 

49. Or dower. 

50. Where voluntary settlement may 

become binding upon creditors. 

51. 6rt^ or charge by wife of se^ 

parate property good consi' 

deration. 
53* If in proportion to settlement. 
54. Which if court cannot determine 

must be left to jury. 



1. A settlement made by the husband after the marriage 
upon his wife and children is obligatory upon himself, and all 
persons claiming as volunteers from or through him. (a) 

2. It is scarcely necessary to observe, that when the settle- 
ment is made after, but in pursuance of written articles 
entered into before the marriage, such settlement is unim- 
peachable by any persons, whether they be creditors or sub- 
sequent purchasers ; for the contract of marriage is a valu- 
able consideration, and establishes the settlement against 
every one. (b) 

3. But if the agreement before marriage be verbal only, 
and the settlement after marriage be made in pursuance of it, 
whether such agreement will support the settlement against 
creditors appears to be undecided. Mr. Roper considers {c) 
that such a promise would not support the settlement 
against creditors, because the statute of frauds is express, 
that no action shall be brought whereby to charge any 
person upon any agreement made in consideration of mar- 
riage, unless some memorandum or note thereof shall be in 
writing, and signed by the party to be charged therewith, or 
some other person by him lawfully authorised, {d) Against 
which enactment he conceives, that the doctrine of part per- 



(a) Watts V. Bullas, 1 P. W. 60 : 
Brookbank v, Brookbank, 1 £q. Ca. 
Ab. 168, pL 7 : Bale v. Newton, 1 
Vem. 464. 



(i) Bovye's case, 1 Ventr. 193. 
(c) 1 Rop. H. & W. 307. 
{d) 29 Ch. 2. c. 3. s. 4. 



112 SETTLE&IENT IN PUBSUAKCE OF PAROL AGBEEMENT 

formance by the subsequent marriage could not be admitted 
to take the case out of the statute, (a) 

Such, he adds, appear to have been the opinions of Lord 
Thurlow and Sir William Grant, in Dundas v, Dutens (6), 
and Randall v. Morgan, (c) 

4. Mr. Jacob remarks upon this point : ^^ In Dundas v, 
Dutens, however, according to Mr. Cox's report, Lord Thurlow 
was clearly of opinion, that a settlement made after marriage, 
in pursuance of a parol agreement before the marriage, was 
not to be reckoned fraudulent against creditors, (d) In 
Dawson v. Ellis («), it was argued that if a man first con- 
tracts verbally to sell his estate to A, and then contracts in 
writing to sell it to B, and afterwards conveys it to A, in 
pursuance of the first contract, A having at that time notice 
of the second contract, B would not be able to call on A for 
a conveyance. It was contended that the statute of frauds 
did not nuUify the verbal contract, but only took away the 
remedy for enforcing it ; that it might therefore still be used 
for the purpose of defence ; and that the circumstance of the 
second agreement being in writing gave it no superior equity 
over the first, when the legal estate had been conveyed in 
pursuance of it. This reasoning was sanctioned by the 
Master of the Rolls : it derives support from analogy to the 
construction put upon the statute of limitations, which, 
though barring the remedy, leaves the debt subsisting for 
some purposes ; and also from the rule hitherto prevailing, 
that in cases within the statute of frauds, as well as in those 
within the statute of limitations, relief may be given, unless 
the objection be insisted on in the pleadings : if a verbal con- 
tract were merely void, it could not be the foundation of a 
decree. Since, however, it is now considered that the statute 
of limitations (/), and as it seems the statute of frauds {g)j 

(a) 1 Ves. J. 199: 3Bro.C.C.401. (e) 1 Jac. & Walk. 524. 

(b) 1 Ves. Jun. 196 : 2 Cox. 235. (/) Foster r. Hodgson, 19 Ves. 180. 

(c) 12 Ves. 67. (g) Redding v. Wilkes, 3 Bro. C.C. 

(d) See also 1 Strange^ 237 : 4 400 : Rist v. Hobson, 1 Sim. & Stm 
East, 207. 543. 



MADE BEFORE MABRIAGE. 113 

may be taken advantage of by demurrer, it is perhaps 
doubtful whether this rule will be followed in all cases ; for 
no relief can in general be given at the hearing when the 
bill is open to a demurrer on the merits as stated in it. And 
the tendency of late decisions has been to treat verbal con- 
tracts as void for all purposes, whether the parties do or do 
not object, (a) In a recent case it appeared that a verbal 
contract was entered into for the sale of the next presenta- 
tion to a living then full ; but it was not reduced in writing 
until after a vacancy had occurred by the resignation of 
the incumbent; the question was whether the transac- 
tion was affected with simony; and the Lord Chancellor 
said that it clearly could not stand, if there was no binding 
contract at the time when the vacancy occurred, and there- 
fore declined to enforce it. (b) " 

5. If the husband has been guilty of fraud, and the case 
does not merely rest on the parol promise, the fraud will 
take the case out of the statute, and then the settlement will 
be obligatory (c) ; as if the husband secretly countermanded 
the instructions which he had given for drawing a settlement, 
and then induced his wife to marry him. {d) 

6. When the agreement before marriage rests upon letters 
or notes, the terms and obligations of the parties must appear 
from them, so as to manifest their intention : this appears 
from the case of Randal v. Morgan, before referred to, and 
the cases there collected. 

7. But when the settlement is after the marriage, and it 
is expressed to be made in consideration of the marriage 
only, the contract of marriage, being completed, ceases to be 

(a) Rose «. Cunnjnghame, 11 (c) Montacate v. Maxwell^ 1 P; 
Ves. 550 : see Buckmaster v. Har- W. 620 ; 1 Stra- 236 ; Prec in Ch. 
rop, 7 Ves. 341 ; 13 Ves. 456 : Gas- 526. 

karth v, Lowther, 12 Ves. 107. (d) 1 Eq. Ca. Ab. 20, pi. 4 : Ch. 

(b) Marqais Townshend v. Bi- Pre. 526: 1 Ves. Jun. 199: 2 Bro 
shop of Norwich, 17th Aug. 1821 ; C. C. 565. 

Reg. Lib. B. 1820, fo. 1791. 

VOL. II. I 



114 POSTNUPTIAL SETTLEMENT VOID AGAINST PUBCHASEB. 

a valuable consideration ; such a settlement then is merely- 
voluntary, although the consideration is moral and meritorious. 
Against purchasers, therefore, such a settlement is absolutely 
void, whether they had or had not notice of it at the time of 
their purchases ; for the statute of the 27 Eliz., c. 4, makes all 
voluntary settlements null and void against purchasers for a 
valuable consideration ; at least the cases have decided that 
it has such an effect, (a) 

8. Thus, in Buckle v. Mitchell (&), A made a voluntary 
settlement of an impropriate rectory upon his sister B, and 
her children ; A afterwards agreed to sell to C, for a valuable 
consideration, some of the tithes belonging to it, but died 
before the contract was completed j C therefore filed his bill 
for a specific performance against the persons claiming under 
the settlement. C had notice of the settlement at the time 
the agreement was made ; nevertheless the Court decreed a 
performance of the contract, upon the principle that under 
the act of the 27 Eliz., the settlement was absolutely void 
against 0, a purchaser for valuable consideration, (c) 

9. The act of the 13 Eliz., c. 6, does not make void volun- 
tary settlements against creditors, but merely declares that 
a fraudulent deed shall be void against them, (d) 

10. Hence it seems to follow, that although a man be 
indebted at the time he made a voluntary settlement, yet it 
is no further void, on that account, than as affording a pre- 
sumption of fraud, (e) 



(a) GcM)ch's case, 5 Rep. 60 b. : 
Cowp. 710: Evelyn r. Templar, 2 
Bro. C. C. 148: Humphreys v. 
Moses, 2 Blackst. Rep. 1019 : Currie 
V, Nind, 1 M. & C. 25. 

(b) 18 Ves. Jun. 100 : see also 
Otley V, Manning, 9 East, 59, where 
all the cases are considered by Lord 
Ellenborough : and Pulvertoft v, 
Pulvertoft, 18 Ves. 84. 

(c) In a subsequent case, Smith 
V. Garland, 2 Mer. 123, it was held 



that the party who had made a vo- 
luntary settlement was not in titled 
to the assistance of a court of equity 
to compel the performance of a con* 
tract subsequently entered into by 
him for the sale of the estate ; s^ 
Johnson v. Legard, Turn. & Russ. 
281 : and 3 Sogden on Vendors and 
Purchasers, p. 304, 10th ed. 

{d) Gale V. WiUiams^ 8 Mees. & 
Wels. 405. 

(e) 1 Atk. 15 : Lord Teynham r* 



WnERB VOID AGAINST CREDITORS. 115 

This principle will serve as a guide to the understanding 
of the cases, and the distinctions which have been made ; 
the conclusions to be drawn from which will be shortly 
stated. 

11. If the husband, when he makes the settlement after •^^/•^•'^^ 
marriage upon his wife, be not indebted at the time, subse- 
quent debta will not defeat it : upon this point Lord 
Hardwicke, in Townshend v. Windham (a), thus expressed 
himself: " If there be a voluntary conveyance of real estate 

or chattel interest by one not indebted at the time, although 
he afterwards becomes indebted, if that voluntary con- 
veyance was for a child, and no particular evidence or badge 
of firaud to deceive or defraud subsequent creditors, that 
will be good (6) ; but if any mark of fraud, collusion, or 
intent to deceive subsequent creditors appears, that will 
make it void, otherwise not ; but it will stand, though after- 
wards he becomes indebted." (c) 

12. Upon this principle. Sir Thomas Plumer, M. R., 
decided the case of Battersbee v. Farrington (cZ), his Honour 
observing, that a voluntary conveyance by a person not 
indebted, was clearly good against future creditors. In 
that case the settlement contained a recital that it was made 
in pursuance of articles entered into before the marriage, 
but they were lost ; and whether the recital would be 
evidence against creditors, so as to establish the deed against 
them, was considered by his Honour, who stated the dis- 
tinction to be, that against all persons claiming under the 
settlor, the recital was conclusive (e) ; but that it would be 
difficult to maintain that a recital in a postnuptial settle- 
ment of antenuptial articles, of the existence of which there 

Mullina, 1 Mod. 119: 2 Ves. Sen. (a) 2 Ves. Sen. 11. 

10 : see also Partridge v, Gropp, 1 (Jb) 1 Atk. 93 : Middlecome v, 

Eden, 163—166 ; and Holloway v. Marlow, 2 Atk. 519 : 2 Bro. C. C. 90. 

Millard, 1 Madd. 414—419: Ri- (c) 12 Ves. Jun. 155. 

chardson v. Horton, 13 Law J. N. S. (d) 1 Swanst. 106—113. 

Chan. 186. [e) See Willes's Rep. 11, 12. 

I 2 



116 EFFECT WHERE HUSBAND IS INDEBTED 

was no distinct proof, would be binding upon creditors ; for 
that such a doctrine would give to every trader a power of 
excluding his creditors, by a recital in a deed to which they 
were not parties, (a) 

13. Where the husband happens to be indebted at the time 
of making the settlement, if his debts be considerable (6), 
and the effect of the settlement would be, if substantiated, 
to defeat the creditors of their demands, then such settle- 
ment is void as fraudulent, under the act of the 13th of 
Elizabeth, (c) 

14. But it would not be so, it is presumed, if the debts 
were of inconsiderable amount ; because their existence 
furnishes no presumption of the settlement having been 
made with an intent to deceive and defraud creditors ; and 
common sense would revolt at a decision that a voluntary 
settlement made by a husband having a rental of 5000^. a 
year, should be void, if it happened that when he made such 
settlement he was indebted in the trifling sum of 1 OOL 

15. This point came under Lord Alvanley's consideration 
in Lush v. Wilkinson, (d) In that case, the husband, at 
the period of making the settlement, was indebted in two 
sums, secured by mortgages, and in about lOOZ. and no more, 
as appeared from the wife's answer ; as also that none of 
such debts were owing at his death, and that he was neither 
insolvent when he made the settlement, nor at his de- 
cease. This settlement was attempted to be impeached by 
a subsequent creditor, upon the ground of its being volun- 
tary, and therefore void against creditors, the bill charging 
insolvency in the husband at that time, and that he was then 
indebted to several persons; but which statements were 
negatived by the widow, except to the extent above men- 

(a) See Anon. Free, in Ch. 101 : (d) 5 Yes. 384 : see also I Madd. 
Wilson V. Pack, ibid. 297. Rep. 421. 

(b) Twine's case, 3 Hep. 81 ^. 

(c) Beaumont r. Thorp, 1 Ves. 
Sen. 27. 



AT THE TIME OF THE SETTLEME^^T. 117 

tioned. His Honour said, that in order for a subsequent 
creditor to obtain a reference for inquiry into prior debts, 
for the purpose of invalidating a voluntary settlement, he 
doubted whether such a reference ought to be made, except 
upon proof of one antecedent debt ; and he further observed 
that in Stephens v. Olive, Lord Kenyon seemed to think 
that without an antecedent debt proved, there was no such 
right ; that a single debt would not do, since every man 
must be indebted for the common bills of his house, although 
he pay them every week, and that the validity of the settle- 
ment must depend upon this, viz. whether the settlor were 
in insolvent circumstances at the time. The creditor's bill 
wa« dismissed. 

16. So, in Townsend v. Westacott (a), where a voluntary 
settlement, made by a person, who, at the time of making it, 
was largely indebted, and who, within three years, became 
an insolvent, was set aside, Lord Langdale, M. R., remarked 
that there had been a little exaggeration in the arguments 
on both sides, as to the principle on which the Court acted 
in such cases; on one side it had been assumed that the 
existence of any debts at the time of the execution of the 
deed would be such evidence of a fraudulent intention as to 
induce the Court to set aside a voluntary conveyance, and 
oblige the Court to do so under the statute of Elizabeth. 
He did not think that the just construction of the statute 
warranted that proposition, because there was scarcely any 
man who could avoid being indebted to some amount, he 
might intend to pay every debt as soon as it was contracted, 
and constantly use his best endeavours, and have ample 
means to do so, and yet might be frequently, if not always, 

(a) 2 Beav. 340 : 4 Beav. 58 : see that the insolvency mentioned in the 

also Shears v. Rogers^ 3 B. & Ad. bankrupt act, 6 Greo. 4. c. 16, must 

362 : Norcutt v. Dodd, 1 Cr. & Ph. mean a total insolvency, such as a 

103 : Lister v. Turner, 15 Law J. general inability to pay debts in the 

N. S- Chan. 336. In CuUen v, San- ordinary course of trade, 
ger, 2 You. & Jer. 459, it was held 

I 3 



118 RIGHTS OF SUBSEQUENT CBEDITOBS 

indebted in some small sum : there might be a withholding 
of claims contrary to his intention, by which he was kept 
indebted in spite of himself ; it would be i3le to allege this 
as the least foundation for assuming fraud or any bad 
intention. On the other hand, it was said that something 
amounting to insolvency must be proved to set aside a vo- 
luntary conveyance: this, too, was inconsistent with the 
principle of the act, and with the judgment of the most 
eminent judges. 

17. Where the husband is considerably indebted when he 
makes the settlement, if such debts be firmly secured, as 
upon mortgages, the mere fact of his being indebted will 
not vitiate the settlement; because the payment of the 
debts then owing having been duly provided for, so as not 
to be evaded in any manner by the husband, the mere 
circumstance of their being in existence, and unsatisfied at 
the date of the settlement, raises no presumption whatever 
that such settlement was made to evade or prevent the 
discharge of them, (a) 

18. So also, when the presumption of fraud, which arises 
from the fact of the settlor being largely indebted, is 
repelled by the settlement itself providing for the payment 
of the debts, such settlement will be good against subsequent 
creditors, (b) 

19. Upon the subject of the rights of subsequent creditors 
against the voluntary settlement. Sir William Grant, in 
Kidney v. Coussmaker (c), thus expressed himself: "Al- 
though there has been much controversy, and a variety 
of decision, upon the question whether such a settlement 
be fraudulent as to any creditors except such as were 
creditors at the time, I am disposed to follow the latest 
decision, that of Montague v. Lord Sandwich (c?), which is, 

(a) 2 B. C. C. 90. 92: see also 1 (c) 12 Ves. 136— -155. 
Madd.418. {d) 12 Ves. 148. 

{b) 9 Ves. 194: Nann r. Wilsmore, 
8 T. R. 521. 



AQAINST POSTNUPTIAL SETTLEMENT, 119 

that the settlement is fraudulent only as against such cre- 
ditors as were creditors at the time," 

20, " This," so Mr. Jacob observes, " must probably be 
understood to mean that subsequent debts will not invalidate 
the settlement, where it does not appear from other circum- 
stances that the intention was fraudulent ; for the authori- 
ties seem to establish that a voluntary settlement may be 
invalidated as well upon evidence indicating a fraudulent * 
object, as upon evidence of debts existing at the time, and 
that if it be found to be invalid upon either ground, the 
subsequent creditors are let in to share the benefit of the 
decree, (a) In Lush v. Wilkinson (6), it was doubted whe- 
ther subsequent creditors could file the bill for the purpose 
of impeaching the settlement, but if they are intitled to 
participate in the property in the event of the settlement 
being found to be fraudulent, there seems no reason against 
their asserting this right as plaintiffs : and accordingly, in 
Richard v. Smallwood (c), where the plaintiff had, subse- 
quently to the dat« of the settlement, become a creditor by 
recovering damages for breach of a covenant in a lease 
previously granted to him by the settlor; the suit was 
entertained. In that case Sir T, Plumer, M. R., observed 
that the statute declared the deed void as against those 
creditors whose actions, &c. were or might be hindered or 
delayed, and that created a question how far it applied to 
subsequent creditors : he did not recollect any instance of 
validity being given to a settlement where the party was 
largely indebted at the time, and subsequent creditors had 
applied for relief. All the cases said that the deed would 
stand, if the party was not indebted, and if it was not frau- 
dulent. Being indebted was only one circumstance from 

(tf) Walker v. Burrowes, 1 Atk. and see 2 Ves. Sen. 10: 2 Atk. 481, 

93: Fitzer r. Fitzer, 2 Atk. 511: posL 
Taylor v. Jones, ibid. 600 : Mon- \b) 5 Ves. 384. 
tague V, Sandwich, 12 Yes. 156 n.: (c) Jac. 552," 

1 4 



120 .WHETHER SETTLEMENT OF STOCK 

which evidence of the intention might be drawn. But 
suppose a person indebted, to execute a conveyance, such 
that if those who were creditors at the tirae complained, it 
would be void as against them : then if they were paid off 
and a new set of creditors stood in their places, would that 
make any difference ? Did it not hinder and delay them, 
and was it not void as against them ? If not, it would be 
easy to evade the statute : the party might pay off those to 
whom he was then indebted by borrowing of others. If the 
conveyance could not be invalidated on the ground of the 
debts alone, the question would be whether it was made for 
the purpose of defrauding creditors. No doubt, if the party 
was not indebted at the time, the onus of proving the fraud 
was thrown on the other side, for he might fairly intend to 
give away his property ; but still it might be fraudulent, as 
contemplating future debts. His Honour afterwards in 
giving judgment remarked, that if it was shown that the deed 
was one which, as against any of the creditors, could not 
stand, then the pi'operty became assets, and was applicable 
to the payment of debts generally : all the creditors would 
come in at whatever times their debts might have arisen : 
that was decided. His Honour was strongly inclined to 
consider the settlement fraudulent, but directed a prelimi- 
nary inquiry as to the debts due at the time of its execu- 
tion." 

21. However, in the late case of Ede v. Knowles(a), Sir 
J. L. K. Bruce, V. C, seems to have considered that a deed 
could only be set aside as fraudulent against creditors at the 
instance of a person who was a creditor at the time, though, 
when it should have been set aside, subsequent creditors 
would be let in. 

22. When the settlement contains property merely which 
is not liable to the demands of creditors at law, as stock 
in the public funds, the question arises whether such 

(fl) 2 Y. & C. C- C. 178 ; S. C. Elliotson v. Knowles, 6 Jur.549. 



IS IMPEACaABLE BY CBEDITOBS. 121 

a settlement can be impeached by any of the settlor's 
creditors. 

23. Mr. Roper (a) argues in favour of the creditors, that 
since, in the administration of assets, stock is subjected to 
the payment of debts by circuity, probably by the like mode 
or analogy, it may be effected in the present instance. 
** Thus," he says, " the statutes creating stock require a will 
disposing of it to be attested by two witnesses ; and if it be 
not so attested, they give it to the executor; who, as 
executor, is held to take the stock, subject to all the de- 
mands affecting the testator's personal estate in general, 
consequently liable to the payment of his debts. May it 
not then be urged, in analogy to this, that as the husband, 
by the settlement, has altered the nature of the fund, and 
by vesting it in trustees converted it into equitable property, 
it shall therefore, in their hands, be liable in the first place 
to the just demands of the settlor's creditors, and that to 
effectuate such purpose, the moment the fund becomes 
equitable, it shall be considered as bound to answer, with 
his other property, his bond fide debts ? If this reasoning 
be admissible, then a settlement of stock only may be im- 
peached by the settlor's creditors, as it has been effectually 
done in the cases of Taylor v. Jones and King v. Dupine." 

24. In Taylor v. Jones (6), the settlement, dated in 1734, 
and made after marriage, upon the wife and children, was of 
1733Z. stock, which were vested in trustees; and in 1741 
the settlor gave warrants of attorney to confess judgments 
against him, and his creditors granted him a letter of 
licence, subject to an agreement that it should not prevent 
them from proceeding against his effects, but that it should 
protect his person. The Master of the Rolls decreed that 
the settlement was void against simple contract creditors, 
and he ordered the trust stock to be sold, and applied in 
discharge of those debts. 

(a) 1 Rop. H. & W. 315. {h) 2 Atk. 600. 



122 WHETHER SETTLEMENT OF STOCK IMPEACHABLE. 

25. In King v. Dupine (which shortly followed the last 
case, and is a decision by Lord Hardwicke, and reported in 
a note by Mr. Sanders, in his edition of Atkyns (a) ), A 
was intitled, after the death of B, and C, the wife of D, to 
the reversion of four Exchequer annuities, which were vested 
in trustees, under a decree of Chancery upon the above 
trusts ; so that A was but a cestuique trust in reversion. 
The plaintiff obtained a judgment against A, and filed a bill 
against A, the trustees, and others, and afterwards a sup- 
plemental bill, stating that a Jieri facias had been issued 
upon her judgment, and that the sheriff had seized the 
reversion of the four Exchequer annuities, and had assigned 
them to W, in trust for the plaintiff: and after further 
stating circumstances which prevented the plaintiff from 
registering the assignment, the supplemental bill prayed for 
a sale of the reversion of the annuities, and payment of the 
judgment debt out of the proceeds. The trustees submitted 
whether the sheriff could seize the reversion of those an- 
nuities, and assign them, and whether the same ought to be 
sold. The biUs were taken, pro confessOj against A. And 
as between the plaintiff and the other defendants, Lord 
Hardwicke ordered the trustees and W to assign all their 
reversionary estate in ihe four long annuities to the plaintiff, 
with proper directions as to the removal of all obstacles to 
the registry complained of in the supplemental bill. 

26. " But these cases," as Mr. Jacob observes (6), " have 
been much questioned, (c) It is to be observed that the ob- 
servations of Lord Thurlow in Dundas v, Dutens apply to a 
case where the attempt was made to impeach the settlement 
while the settlor was living, and are founded on the circum- 
stance, that during his life the creditors could not, by execution 

(a) 2 Atk. 603, and Reg. Lib. A. J. 198 : 2 Cox. 235 : also Lord El- 
1744. fo. 91: see also Horn V. Horn, don's remarks in Rider v, Kidder, 
Ambl. 79. 10 Vea. 369 : and in G uy v. Pearkes, 

(b) 1 Rop. H. & W. 316n. 18 Ves. 197 : and Grogan v. Ck)oke, 

(c) See Lord Thurlow's observa- 2 Ball & B. 230. 
tions in Dundas r. Dutens, 1 Ves. 



WHAT DEBTS WILL AVOID SETTLEMENT. 123 

at law, render the stock available to their demands. But after 
his death the case admits of different considerations : the stock, 
if not settled, would then become assets, and if the settle- 
ment had for its object to deprive the creditors of the reme- 
dies which they would otherwise have on the settlor's death, 
it seems to come within the meaning of the statute. In 
these cases it does not seem to have been doubted that 
the words ^ goods and chattels' in the statute, comprised 
stock, (a) " 

27. And where the settlor has brought himself within 
the operation of the insolvent debtors act, it seems that 
such a settlement might be impeached. 

28. Thus, in Norcutt v. Dodd (6), a voluntary settlement 
of an annuity was held void against the assignees in in- 
solvency of the settlor. Lord Cottenham, C, saying, that the 
difficulty which arose upon the stat. of Elizabeth with 
respect to voluntary assignments of choses in action was, 
that during the life of the debtor, creditors could not be said 
to be prejudiced by them, inasmuch as that species of pro- 
perty was not liable to be taken in execution ; but after his 
death it was otherwise, because then the creditors might reach 
all his personal property, of whatever kind ; and the same 
reason applied where the debtor had brought himself within 
the operation of the insolvent debtors acts, because imder 
those acts all his property became applicable to the payment 
of his debts. 

29. It does not seem necessary that debts owing by the 
husband at the time he makes a voluntary settlement should 
be absolutely due, in order to enable such creditors to defeat 
the deed ; but that debts then in contingency would have 
that effect. Thus, in Rider v. Kidder (c), the husband, 

(a) See Brown v, Bellaris, 5 Mad. rangement of his lordship's words ; 

63: Rex V. Capper, 5 Price, 217. and that in order to convej cor- 

(6) 1 Cr. & Ph. 100. rectlj his lordship's meaning the 

(c) 10 Yes. 360 — 370. Mr. Roper words ought to be thus transposed : 

notices, (1 Rop. H. & W. 317), that "my opinion is, the plaintiff would 

there must be a mistake in the ar- be a creditor under a marriage set- 



124 EFFECT WHERE POWEB OF REVOCATION, 

by settlement prior to his marriage, covenanted for pa3nnent 
to his wife, if she survived him, of SOOOL within twelve 
months after his death, &c. He, during the marriage, made 
a voluntary settlement upon another woman, and died ; and 
Lord Eldon is reported to have said, his opinion was, " that 
the widow would be a creditor under a marriage settlement 
that a fraudulent conveyance would affect." 

30. In cases where the settlement may be avoided by cre- 
ditors, yet if their debts be afterwards paid, the deed will be 
good against the settlor, and all persons claiming as vo- 
lunteers by or under him. (a) In Curtis v. Price (b) Sir 
William Grant said, " a settlement of this kind is void only 
as against creditors, but to the extent alone in which it may 
be necessary to deal with the estate for their satisfaction. 
To every other purpose it is good. Satisfy the creditors and 
the settlement stands." 

31. Upon the principle of the mere circumstance of the 
settlor being indebted when he made the settlement after 
marriage not rendering such deed void, but as primd facie 
raising presumptive evidence of fraud, if the settlor be not 
then indebted, but becomes so immediately upon or shortly 
after the making of it, the intention of making it will 
be presumed to have been to defraud the subsequent 
creditors, which will therefore defeat the settlement, (c) 

32. When the voluntary settlement upon the wife is of 
real estate, if the husband reserve to himself a general power 
of revoking the uses and trusts limited and declared in it, 
that reservation will invalidate the settlement against pur- 
chasers for a valuable consideration, and statute and judg- 
ment creditors (d)y as it will do in the instances of ante- 
nuptial settlements, which have been noticed in a preceding 

tlement that would affect a fraudu- (b) 12 Ve8.89. 103: S. P. ex parte 

dulent conveyance," t. e. a voluntary Bell, 1 Glyn & J. 282. 

conveyance. (c) 1 Atk. 93: 2 Atk. 481. 

(a) Hawes r. Leader, Cro. Jac. (d) 2 Vera. 510. 
270. 



OR INTEREST IN ESTATE RESERVED. 125 

section. And it is presumed that voluntary settlements by 
a husband of his personal estate would be equally void 
against creditors upon presumptive fraud, if they contained 
the like powers ; since, notwithstanding the deeds, the 
husband would continue to have the absolute dominion 
over the settled property, and the reservations of such 
powers would raise a strong inference, that the motives 
or objects of the settlements were to exempt the husband's 
personal estate from his subsequent obligations. It is con- 
ceived, however, that the effect of such powers upon the 
validity of voluntary settlements would be subject to the 
like distinctions as wore mentioned in the above section. 

33. And where no power of revocation is expressly re- 
served in a voluntary settlement; if, nevertheless, the 
husband retain or reserve to himself so large an interest or 
power over the settled personal fund as to show the intent 
of the transaction to have been to defeat his creditors, under 
the colour of a bond Jide settlement ; such reservation of 
power will be fatal to the instrument. 

34. Thus, in Russel v. Hammond (a), it appears from the 
last settlement mentioned in that case, that the husband re- 
served to himself and wife for life an annuity of 27Z., which 
was supposed to be the probable value of the settled estate. 
This Lord Hardwicke considered to be a plain badge of 
fraud, and almost tantamount to a continuance in possession. 
He was therefore of opinion, that the creditors were intitled 
to be relieved against such settlement. 

35. Another circumstance which has been considered to 
invalidate a voluntary settlement as against creditors upon 
presumptive fraud is, when, notwithstanding the settlement 
purports to be an absolute transfer of personal property, the 
husband continues in possession of it ; and, contrary to the 
transaction, is permitted to appear as the owner, and to 
obtain false credit. (6) 

(a) 1 Atk. 16. Stone t^. Grabbam, 2 Bulstr. 218: 

(b) Twine*8 case, 3 Rep. Sb.: Edwards v. Harben, 2 Term Rep. 687. 



126 EFFECT WHERE SETTLOR CONTINUES 

36. The rule was laid down by all the judges in Bam- 
ford V. Barrow (a), to the following effect ; that unless 
possession accompanies and follows the deed, it is fraudulent 
and void. It is a consequence from this rule or definition, 
that if the possession of the husband be consistent with the 
settlement, there can be no fraud presumed from the cir- 
cumstance of the settlor continuing his possession, on 
account of which the deed can be avoided, (i) 

37. Accordingly, if the settlement of the husband's per- 
sonal estate were conditional, i. e. to take effect upon his 
being paid a sum of money ; and that payment or condition 
was not merely colourable (c), his continuance in the mean 
time in possession of the settled property would not avoid 
the settlement ; because, by the terms of the deed he is not 
to part with the possession until the condition be performed, 
and according to the above rule the possession follows the 
deed, {d) 

38. But it is presumed that if the voluntary settlement 
appear to be so contrived that the possession of the property 
by the settlor shall be in conformity with the deed, mani- 
festing at the same time the object to be to defraud sub- 
sequent creditors, and still to secure the possession of the 
property to the settlor, such settlement will be void against 
creditors, {e) 

39. This, it is conceived, appears from the case of Stileman 
V. Ashdown. (/) There two purchases were made in the joint 
names of a father and his two sons. The father paid the 
consideration money, and afterwards died, having till that 
time continued in the possession of the lands, and from 

(a) 2 Term Hep. 594, in notis, (o) Griffin v. Stanhope, Cro. Jac 

\b) Kidd V. Rawlinson, 2 Bos. & 464. 

Pull. 59: Arundell v. Phipps, 10 {d) 2 Bulstr. 218. 

Yes. 139 — 145, et infra: Bucknal {e) Lavender o. Blackstone, 2 

V. Bojston, Pre. Ch. 285 : Cadogan Lev. 146. 

V. Kennet, Cowp. 432 : and Hase- (/) 2 Atk. 478 : see also Christ's 

linton V. Gill, 3 Term Rep. 620, in Hospital v. Budgin, 2 Vern. 683. 
notis. 



IN POSSESSION OF ESTATE. 127 

thence the possession was continued by the two sons. The 
question was between the executor of the father's judgment 
creditor and the two sons, who resisted the claim, upon the 
grounds of the purchases having been made for their ad- 
vancement. But Lord Hardwicke decreed in favour of the 
judgment creditor, observing that this was a singular case ; 
that in other instances purchases as advancements had been 
generally made in the names of the children only, and then 
the possession of the father was considered as that of their 
guardians during infancy; but that here the purchases 
having been made in the name of the father as well as in the 
names of his two sons, they were joint tenants, and that 
such purchases did not answer the purposes of advance- 
ments, for it intitled the father to the possession of the 
whole until a division or severance, and by survivorship he 
might have become intitled to the whole; and that the 
father had been in possession of the whole estate, and ap- 
peared the visible owner, and the creditor would have been 
intitled to an elegit for a moiety. His Lordship, after 
noticing that a voluntary settlement by a person not in- 
debted at the time, but made with a view to debts in futuroj 
would be fraudulent ani void, said, he therefore decreed the 
creditor, in this case, to be let in upon the estates jointly 
purchased by the father and sons. His Lordship, therefore, 
must have considered the purchases, and the father's pos- 
session in conformity with the deeds, to be contrivances to 
defeat creditors. 

40. Settlements made after marriage, in pursuance of 
articles entered into before it, have been already noticed, (a) 
The only subject remaining to be considered, is in what cases 
settlements made after marriage upon the wife and children, 
not in consequence of articles, can be supported against 
purchasers and creditors on the ground of valuable con- 
sideration. 

(a) SuprcLy p. 111. 



128 WHERE POSTNUPTIAL SETTLEMENTS VALID 

41. It is the practice of almost every day for the Court of 
Chancery to direct settlements to be made upon the wife, 
and they are good, not only in equity, but at law; for 
in such cases the presumption of fraud fails, and the Court 
will support its own acts, (a) 

42. If the settlement be made between the husband and 
the wife's friends on her behalf without the intervention of 
the Court of Chancery, in consideration of her father, or 
some other person, advancing a sum of money, such settle- 
ment, although made after the marriage, will be valid 
against creditors and subsequent purchasers, as a settlement 
made for a valuable consideration, and not within the two 
statutes of Elizabeth, (b) 

43. And it seems that if the money be not actually paid, 
but it be well and fairly secured to be paid, the effect will be 
the same. Thus, in a case (c) where A, as daughter of B, 
was intitled to a moiety of 12,000/. secured by her mother's 
marriage settlement, subject to the contingency of being 
lessened by the birth of another daughter, A clandestinely 
married C, and afterwards B secured A's 6000?. upon his 
estate, and B made a settlement upon her. The Court de- 
termined that the settlement was good against B's creditors. 

44. In Middlecome v. Marlow (d), the wife was intitled to 
a leasehold estate, and a share of her father's residuary per- 
sonal estate amounting to 500?. The wife married during 
infancy, and her husband afterwards by deed agreed with 
her father's executors that the 500L should be settled to her 
separate use for life, and then to the issue of the marriage ; 
and the trustees were empowered to advance to the husband 
as a loan all or any part of the money. The trustees lent to 
him all the money, and he became a bankrupt. And at 

(a) Ambl. 121 : Cowp. 432--436. (c) Wheeler v. Caryl, AmbL 121 : 

(b) ColviUe v. Parker, Cro. Jac. Moor v, Rjcault, Pre. Ch, 22, S. P. 
158 : 2 Ves. Sen. 309 : 1 Atk. 190: {d) 2 Atk. 519. 

see also Doe ». Webber, 3 Nev. & 
Man. 586. 



AGAINST CBEDITORS OB PUBCHASEBS. 129 

the suit of the trustees, Lord Hardwicke allowed them to 
prove the 500L as a debt, although it was resisted by the 
assignee under the commission upon the ground that the 
money was not advanced to the husband as a loan, but in 
payment of the legacy, and receipts were produced under 
the husband's hand for money due on account of the legacy, 
one of which was before the deed. And his Lordship ob- 
served that although the Court would not have directed 
that settlement if the husband had any estate of his own to 
settle, yet it was proper as there was no consideration on 
the husband's side, and as the Court would have done just 
the same thing upon the Master reporting this to be the 
circumstance of the case ; there was, therefore, no pretence 
to call the settlement unreasonable. His Lordship added, 
that the Court never weighed nicely what would be the 
particular advantage on one side or the other under a settle- 
ment, if it be just in general (a) ; and he said, although, 
after the execution of the deed, the receipts were given as 
for a legacy, yet they must be taken to be upon the footing 
of the deed of trust. 

45. It has been before noticed (ft), that the Court of Chan- 
cery will order an additional settlement to be made upon the 
wife on an increase of fortune falling to her, which settle- 
ment will bind both creditors and purchasers of the husband. 
The effect will be the same if such settlement be made 
between the husband and the friends of the wife, and be not 
a colourable, but a bond fide transaction. 

46. Thus, (c) A, the wife of B, having a contingent in- 
terest under a bond given by B on the marriage, but no 
judgment entered up nor any trustees added for her, had 
also a lease of the corn-meter's office left her by the will of 
her father, whose executor would not consent to the husband's 
sale of it, unless he made a further provision for her. But 

(a) 8 Term Rep. 529. (c) Ward v, Shallet, 2 Ves. Sen. 

(6) AntCy p. 98 : and see 5 Yes. 16 : see also Jones v. Marsh, Forrest. 
JiuL 737 : 10 Yes. 574. 64 : Brown v. Jones, 1 Atk. 188. 

VOL. U. K 



130 WHBBE POSTNUPTIAL SETTLEAIENTS GOOD 

on a meeting with her friends she agreed, that upon settle- 
ment of part of the money arising from the sale, for her 
separate use during B's life, and afterwards for the children 
of the marriage, she would part with her interest under the 
bond, and that the other part of the money should go to the 
husband, who afterwards became a bankrupt. The assignees 
attempted to set aside this arrangement. But Lord Hard- 
wicke supported the transaction, because there was a clear 
consideration arising from the wife and her friends, which 
was the parting with her contingent interest under the bond, 
which he considered she might do, the tranaip^tion having 
been between her and her husband with the privity and 
consent of her friends. His Lordship then said, that this 
consideration took it out of the statute of Elizabeth, in respect 
of creditors, and that, as to the statutes of bankruptcy, they 
did not extend to cases where there was a consideration. If, 
therefore, the father or collateral relation advanced a sum of 
money by way of new portion, in consideration of which the 
husband made a new settlement, it would be good against 
the creditors under the commission, unless proved that the 
settlement vastly exceeded the consideration, so that from 
the inadequacy a collusion or fraud was intended on the 
creditors. 

47. As the advancement of money on behalf of the wife 
for a settlement will make it good against creditors, so the 
giving up of any valuable interest by her in consideration 
of the settlement after marriage will support it against 
creditors and subsequent purchasers, because such a settle- 
ment does not class among those that are voluntary, but 
amongst such as are made for a valuable consideration ; in 
fact, the wife herself becomes a purchaser for herself and 
family. 

48. Thus, in the above case of Ward v. Shallet, and in 
Cottle V. Fripp (a), the wifi^^ being intitled to a jointure of 

• 

(a) 2 Vern. 220. 



AOAINST 0RSDIT0B6 OB FUBCHAaEBS. 131 

40/. a year, relinquished it by fine after the marriage in con- 
sideration of a bond, and a judgment confessed by the hus- 
band to her trustee to settle lands upon her of that yearly 
amount; the Court decreed that the bond and judgment 
wfffe intitled to precedency of the husband's other creditors, 

49. So also in Lavender v. Blackstone (a), the Court said 
that if lihe wife had joined with the husband in the fine (by 
which she would have been barred of dower), it might have 
made the settlement after marriage to be of good consi- 
deration, which otherwise was merely voluntary. 

50. It seems that the provision made by the husband for 
his wife may in its creation be voluntary and void as against 
creditors, and yet become afterwards binding upon them. 
Thus, if he were to give a bond to a trustee to pay a sum of 
money within six months to be settled upon his, the obligor's 
wife and family, this is a good bond against himself, but 
it may be defeated by his creditors : but if the six months 
elapse, and the husband, instead of paying the money, gives 
another bond to the trustee in consideration of being allowed 
a further period for payment of the money, and of the sur- 
render of the first obligation ; it is presumed that, in analogy 
to the case of ex parte Berry (J), the second bond will not 
only be binding upon the husband, but also upon his cre- 
ditors ; upon the principle, that the first bond, although volun- 
tary, (it being good between the parties, and upon which 
the obligor might have been compelled by legal process to 
have paid the money), having been surrendered for another 
security, the forbearance and surrender constitute such a 
valuable consideration as to make the transaction binding 
upon the husband's creditors. The transaction, however, 
must not be fraudulent, for if the original design of the 
parties in thus giving, accepting, and surrendering the 
securities, was an attempt to create a valuable consideration 
by trick and contrivance, it would taint the whole transaction 
and prove ineffectual. 

(a) 2 Lev. 147. {b) 19 Ves!218. 

K 2 



132 WHERE CONSIDEBATION IS WIFE'S SEPABATE ESTATE. 

51. If the wife enjoy property to her own separate use, 
and subject to her own separate and absolute disposition, 
and she give any part of it to her husband, or charge it for 
his use in consideration of a settlement after marriage, she 
wiU be a purchaser of the provision, and the settlement will 
be binding upon his creditors and subsequent purchasers. 

52. Thus, in Lady Arundel v. Phipps (a), the wife had 
a general power of appointment under her marriage settle- 
ment in default of issue male (of which there were none), of 
certain estates belonging to her own family, and comprised in 
the settlement, with the ultimate limitation to her own heirs. 
She, dealing with such her separate estate, contracted with 
her husband for the purchase from him of several paintings, 
drawings, engravings, plate, jewels, &c., by providing out of 
her estates, after the survivor's death, for payment of several 
of his debts, amounting to 12,000^., and releasing him from 
a considerable debt affecting such estates, and which had 
been borrowed for him, and by resettling the estates as 
therein mentioned, and which matters were effected by her 
exercising the above power of appointment. The husband, 
on his part, assigned to trustees for his wife the paintings, 
drawings, &c. The question was, whether this postnuptial 
settlement was valid against the husband's creditors. The 
husband, it seems, continued in possession, which however 
appeared to be unavoidable, and was not inconsistent with 
the deed, since his possession must be considered as that of the 
wife, the trust being to permit her to use and enjoy, &c. And 
Lord Eldon expressed his opinion that, if the wife's purchase 
were bond Jide^ it was of no consequence whether it was 
before or after marriage ; that the mere circumstance of the 
possession of chattels, however familiar it might be to say 
that it proved fraud, amounted to no more than that it was 
primd facte evidence of property in the man possessing them, 
until a title not fraudulent were shown under which that 
possession had followed. 

(a) lOVes. 140 



WHAT SETTLEBOSNT WILL BE ADEQUATE. 133. 

53- The case was never decided in equity, though much 
discussed both there and at law. (a) At law the settlement, 
under all the circumstances, was found by a jury to be 
fraudulent, but not to the satisfaction of Lord Eldon, who 
intimated, that if the property sold to the wife bore any rea- 
sonable proportion to the value of the 12,000Z., the settle- 
ment would be good if devested of circumstances of fraud. 
He therefore directed an issue to the Court of Common Pleas, 
the trial of which, it is believed, was prevented by the com- 
promise of the suit. 

54. What is a reasonable proportion or value between the 
thing given or paid, and that settled in consideration of it 
by the husband, is a point which in each case depends 
upon its peculiar circumstances. The question is incapable 
of a general definite answer, and when the Court is unable 
to draw the conclusion after weighing all the circumstances, 
the fact must be ascertained by a jury. This alone can 
be affirmed, that if the settlement be just in general, 
the Court does not weigh with exactness the particular 
advantage gained on the one side or the other; but that 
if the disproportion be so great as would strike any man of 
common sense with the inadequacy between the settlement 
and the price given for it, then such circumstance will raise 
so violent a presumption of fraud as to vitiate the transaction 
and let in the husband's creditors. 

(a) 6 East, 257. 



K 3 



}34 SUM PAYABLE BSFOBE BAITEBUFTCT PROVEABLE. 



CHAPTEK III. 

OF THE RIGHTS OF THE WIFE ON HER HUSBAND'S BANKRUPTCY, 
WHERE HE HAS BOUND HIMSELF TO SETTLE A SUM OF MONET 
UPON HER. 



1. Sum payable to toife or her 
trustees before bankruptcy may 
be proved. 

3. Sum payable on contingency 

formerly not proveable, 

4. Unless where security given eon^ 

stituted immediate denuMnd, 



5. But debt pay (Ale on contingency 

may now be proved, 
8. Unless where value of ^oMin- 

gency not ascertainable. 
10. Right of trustees where husband 

hcu Ufe interest in sum eove* 

nanted to be paid. 



1. If the husband has previously to the marriage bound 
himsdf by bond or covenant for payment of a sum of money 
to his wife, or to trustees for her benefit, and the sum becomes 
payable before his bankruptcy, it constitutes a present debt, 
and may be proved under the commission. Thus, if the sum 
is to be paid or settled upon the marriage, or as speedily as 
may be after the marriage (a), which in substance is the 
same, or if it be payable on demand, and a demand be made 
previous to the bankruptcy (6), it may be proved as a 
present debt. 

2. And where the marriage settlement falsely recited that 
the husband was possessed of lOOOZ. and upwards in trade, 
and he covenanted that 500Z., part of it, should be vested in 
trustees for his wife and children, and afterwards became 
bankrupt, it was held that the 500/. was a debt proveable 
under the commission, on the ground that the husband was 
bound to make good the representation contained in the set- 
tlement, (c) 

(a) Ex parte Granger, 10 Yes. 244: ex parte Brenchlej, 2 Glyn & 
349. J. 174. 

(b) Ex parte CampbeU, 16 Yes. (c) Ex parte Gzriner, 11 Yes. 40. 



SUM DATABLE UPOK CONTOfQENCY. 135 

3. But the rule was different (previously to the 6 Geo. 4., 
C.16) in cases where the sum had not come payable before 
the bankruptcy : a fiiture debt could not be proved under a 
commission, if it waa subject to a contingency, or if the time 
of payment was uncertain, (a) If the sum was payable at a 
future ascertained period, free from any contingency, it 
might be proved, (b) But if it was payable on a con- 
tingency, as in the event of the wife surviving (c), or on de- 
mand, and no demand was made prior to the bankruptcy, or 
at an uncertain period (d)y as on the death of the survivor 
of the husband and wife («), it could not be proved. 

4. However, although the debt was contingent, if the bank- 
rupt had given a security, constituting an immediate demand 
against him at law, the proof was received upon the footing 
of there being a legal debt, the payment of the dividends 
being arranged upon equitable terms. Thus, if the sum was 
secured by a judgment against the bankrupt (/), or by a 
bond with a penalty, which had become forfeited by a breach 
of any part of the condition (^), the Court availed itself of 
the legal right which these securities gave, to admit a proof 
which in equity ought to be allowed. (A) 

5. But by the 6 Geo. 4. c. 16, s. 56, in all cases of debts 
payable upon a contbgency which has not happened before 
the issuing of the commission, the creditor may, if he thinks 
fit, apply to the commissioners to set a value upon such debt, 
and they are required to ascertain the value, and admit the 
creditor to prove the amount so ascertained, and to receive 
dividends thereon : or if the value shall not be so ascertained 
before the contingency shall have happened, the creditor may 

(a) Ex parte Barker^ 9 Yes. 110. {e) Ex parte Barker, ubi sup. 

(b) Ex parte Cottrell, Cowp. 742 : (/) Ex parte Smith, Cooke's 
Pattison v. Binkes, ibid. 540 : see ex Bank. Law, 212 : see 1 Atk. 117. 
parte Mitford, 1 Bro. C C. 398 : and (g) Ex parte Bowlatt, 2 Bose, 
9 Yes. 114: 3 Mer. 105. 416 : Ex parte Elder, 2 Madd. 282. 

(c) Ex parte 6ro<mie, 1 Atk. 115« (A) See 1 Gljn & J. 115. 

(d) Ex parte Alcock^ 1 Rose, 323 ; 
1 Yes. & B. 176. 

K 4 



136 WHERE VALUE OF CONTINGBNCT NOT ASCBRTAINABLB. 

prove in respect of such debt, and receive dividends with the 
other creditors, not disturbing any former dividends, (a) 

6. In ex parte Hooper (6), where the husband, having 
received 550/. with his wife, on his marriage gave a bond to 
trustees conditioned for payment of 1100/. on receiving 
notice from the trustees, it was held that, although no 
notice had been given, the debt was proveable within the 
above section. 

7. In ex parte Tindal (c), the husband covenanted to 
secure to his wife 80/. for her separate use, and within twelve 
months after -her decease to cause 4000/. to be paid to her 
trustees, with interest from the time of his death, in trust 
to pay the interest to her for life, in case she survived him, 
and after her death in trust to pay and assign the money and 
interest between their children ; and if they should have no 
child, to the survivor of them, his or her executors, ad- 
ministrators, and assigns. The husband having become 
bankrupt, and his wife being still living, the trustee applied 
to prove for the value of the 4000/. The proof was rejected 
for the commissioners ; Sir L. Shadwell, V. C, on petition, 
directed that the proof should be allowed. This decision 
was afterwards reversed by Lord Lyridhurst, C. {d) The 
case was afterwards reheard before Lord Brougham, C, 
with the assistance of Tindal, C. J., and Littledale, J. ; 
who held that the debt was proveable. {e) 

8. But the debt will not be allowed to be proved where the 
value of the contingency cannot be ascertained. Thus, 
where the husband by his marriage settlement cove- 
nanted that his heirs, &c. should, within twelve months after 
his death, pay 4000/. to trustees, in trust for the wife during 
her life, and afterwards for the children of the marriage, and 



$. ,» 



(a) The act is retrospective, ex (d) Ibid. 422. 

parte Grundy, Mont. & liTAr. 293. (e) Mont. 375. 462 ; 8 Bing. 402 ; 

(b) 1 Mont & Ayr. 395 ; 3 Deac. 1 Moo. & Sc. 607 ; 1 Deac. & Ch. 
& Ch. 655. 291. 

(c) Mont. & M'Ar. 415. 



WHEHE HUSBAND HAS LIFE INTEREST IN SUM PROVED. 137 

if there were no children who became intitled, in trust for the 
survivor of the husband and wife. There were no children. 
The husband having become bankrupt, it was held by Lord 
Lyndhurst, C, on appeal, that the contingency was incapable 
of being valued, (a) And this has also been held to be the case 
where the contingency depended on the separation of husband 
and wife, and of a widow's not marrying, (b) 

9. Where the husband before marriage gave a bond for 
3000Z. to trustees to secure the payment by his executors of 
an annuity of 15QL in case his intended wife should survive 
him, for her benefit, the husband and his wife being both 
living, it was held on the husband's bankruptcy that the 
trustees could prove for the annuity under the fifty-fourth 
section of the above statute, (c) 

10. When the husband becomes bankrupt, having cove- 
nanted to settle a sum so as to give himself a life interest, the 
trustees have a right to withhold the dividends from his 
assignees until the sum covenanted to be settled is made up. 

11. Thus, in ex parte Turpin (d)j a trader upon his mar- 
riage having given a bond for 3000/., to be settled on himself 
for life, remainder to his wife and children, it was held on 
his bankruptcy, that the trustees were intitled to prove 
for the whole sum secured, and to retain the dividends during 
his life, until the whole sum was made up. 

12. So, in a case where, by the terms of the settle- 
ment, the wife's property was settled upon her in case 
of the husband's death, or the parties being divorced, 
but the husband was intitled to the interest for his life, and 
in case he survived his wife, he was to have a certain share 



(a) In re Gibbins, 8 Law J. Chan. (d) Mont 443 ; 1 Deac & Ch. 

96: but see ex parte Tindal, uhisup. 120 : see ea; parte Young, 2 Mont. 

{b) Ex parte Davis, Mont 121 ; & Ayr. 228 : ex parte 'King, 2 Mont 

1 Deac. 116; S. C. on appeal, Mont & Ayr. 410 : ex parte Smith, 2 Mont 

297. & Ayr. 537. 

(c) jEx parte Broadley, 2 Mont 
D. & D. 524 ', 6 Jur. 600. 



138 WHEBE HUSBAKD HAS UFE VSTSSEBT IS 9UM FBOTEABLE. 

in the property, it was held that the wife might, in the name 
of her trustees, make such proof as the commissioners might 
think i^e was intitled to, and that the dividends and interest 
on such proof should accumulate for her benefit, (a) 

13. Where the husband had covenanted to pay 6000Z. to 
the trustees of the settlement, a similar sum having been 
assigned to the trustees by the wife, and the trusts of the 
two sums were &>t the separate use of the wife during the 
joint lives of herself and her husband, and, on the death of 
either, to the survivor for life, and then to the children, it was 
heldy on the bankruptcy of the husband, that the trustees 
might sell his contingent interest in the whcde fiind, and 
apply the produce in part satisfaction of his covenant, (b) 

(a) Ex parte Saonden, 3 Deac. (b) Ex parte Gonne, 3 Mont & 
& Ch. 568. Ayr. 166 ; 2 Deac. 279. 



BOND TO BE SUED UPON ON BANZBUPTCT. 



139 



CHAPTER IV. 

WHAT SETTLEMENTS BT THE HUSBAND WILL BE CONSIDERED 
TO BE IN FRAUD OF THE BANKRUPT LAWa 



2. Bond to he sued upon only in 

event of husband's bankruptcy 
fraudulent^ 

3. Although connected with articles 

if wife's property not settled. 

5. Husband cannot settle his own 

property so as to intitle wife 
on his bankruptcy. 

6. But trust for maintenance of 

wtfe on husband's bankruptcy 
vaUd 

7. And toife^s property may be set- 



tled so as to determine hus^ 
band's interest on his bank' 
ruptcy. 
12. Husbands bond for wife's for ' 
tune payable on bankruptcy, 
proveable, 

14. Power of equity to correct set- 

tlement, 

15. Lien on wife's estate conveyed 

to husband, for money cove- 
nanted to be paid by him in 
consideration of conveyance. 



1. No person is allowed by any device to counteract the 
spirit and intention of tlie bankrupt laws. Lord Eedesdale, 
in ex parte Murphy (a), said, that although he was bound to 
decide in favour of a debt whether it were legal or equitable, 
yet that, if it appeared to be a contrivance to evade the 
bankrupt laws, the debt was not conscientious, and no 
dividend ought to be paid upon it. As to what will be con- 
sidered such a contrivance, it is presumed that upon con- 
sideration of all the cases the following distinctions may be 
established. 

2. K a bond be given by the husband before maniage to 
pay a sum of money for his wife's use, with a condition or 
defeasance not to put it in force except upon his failure or 
insolvency, or bankruptcy, such a bond will be fraudulent 
and void against the husband's creditors, and will not be 



(a) I Sch. & Lef. 44. 



140 BOND TO BE SUED UPON ON BANKRUPTCY VOID, 

permitted to be proved under his commission, (a) Upon this 
point, Lord Eldon, in ex parte Cook (J), expressed himself to 
the following eflTect: — "If the husband be to give a bond 
with condition to pay money, in the event of his bankruptcy, 
there is great difficulty upon the point whether the demand 
is not fraudulent against creditors. There have been cases, 
both before Lords Thurlow and Rosslyn, in which each of 
them held, that if it were not the case of a settlement of 
part of the wife's property, but a bond by the husband, it 
would not do." — In ex parte Hodgson (c), his Lordship 
was more explicit, declaring, that if the case before him 
were to be considered merely as the husband's bond, it would 
not do. 

3. And although the bond be connected with articles or a 
settlement, yet if the wife's property be not the subject of 
the settlement, and it appear from the instruments that 
the intention of the parties was to create a debt merely upon 
insolvency or bankruptcy of the husband so as to create a 
demand out of his estate, such contrivance and securities will 
be void against his creditors. 

4. Thus, in ex parte Murphy (<i), the wife of the bankrupt 
and her trustees under a marriage settlement, petitioned for 
leave to prove under the commission 800/. under the following 
circumstances : prior to the marriage a bond was given by the 
bankrupt to the trustees, conditioned for the payment of the 
above sum on the 3d of March, 1796, with a warrant of attorney 
to confess judgment, with a stay of execution till that day. 
At the date of the bond on the 3d of October, 1795, a settlement 
was executed by the bankrupt and his wife, and their trustees, 
referring to the bond, and covenanting that the 800?. should 
be payable and be sued for only in the event of the wife's 
surviving her husband. And after reciting that the husband 

(a) Ex parte Hill, and ex parte {d) 1 Sch. & Lefroy, 44 : see 
Bennet, 1 Cooke's B. L. 228. also Higginson v. Eellj, 1 Bose, 

(b) 8 Ves. 355. 368. 

(c) 19 Ves. 206. 



THOUGH CONNECTED WITH ARTICLES OR SETTLEMENT. 141 

was a trader, it was further covenanted, that in case of 
failing in his circumstances, but not otherwise, the trustees 
were empowered to enter judgment on the bond, and to issue 
execution. The bankruptcy was subsequent to the 3d of 
March, 1796, so that the bond became absolute. Lord 
Redesdale'said, he considered the whole device a fraud upon 
the bankrupt laws; and that under the first-mentioned 
covenant the debt was merely contingent, and the subsequent 
provision in case of insolvency, &c., was fraudulent, an 
attempt and contrivance to make that a debt in case the 
husband became bankrupt, which could not be so otherwise ; 
that it was a contingent demand for SOOl. payable only if the 
wife survived her husband, which was the only demand that 
could be made consistently with the agreement between the 
parties provided the husband did not become a bankrupt ; 
that such being the nature of the demand, the settlement 
itself showed that it was intended to contrive what his 
Lordship conceived to be a fraud upon the bankrupt laws ; 
for a clause in it noticed the husband being a trader, and 
that it was necessary to secure something in the event of his 
bankruptcy : for that purpose a bond was to be given payable 
at a day certain, but the sum was not to be recovered from 
him unless he became insolvent. As to this sum, therefore, 
though a legal demand, yet on the foundation of the 
settlement if an attempt were made to sue him upon the 
bond, or to enter up judgment whilst he continued solvent, 
he would have a right to come into a Court of Equity and pre- 
vent it, and to have the contract which was the ground of the 
bond carried into execution by restraining proceedings on 
the bond. And his Lordship added that the debt was to be 
taken as it stood upon the whole of the instruments executed, 
and the contract in the deed of settlement was that the bond 
should have no effect but in the case of bankruptcy ; for it 
was not the bond that was to operate in the event of the hus- 
band dying before the wife ; it was not the bond that was 
the security to the wife if she survived, nor to the children if 



142 HUSBAND CANNOT SETTLE HIS OWN PROPEBTT 

she died before her husband, so that the whole effect of 
the clause was to avoid the operation of the bankrupt laws* 
For these reasons his Lordship was of opinion that the 
debt could not be proved, although he could not make an 
order upon the petition from the irregularity of the appli- 
cation, which ought to have been by the assignees to expunge 
the debt. 

6. In Higginbotham v. Holme (a), the husband, by settle- 
ment prior to marriage, conveyed to trustees certain freehold 
estates to hold after the marriage to the use of the husband 
for life, unless he should embark in trade, and during his 
wife's life become bankrupt, and from his death, or his being 
declared a bankrupt, which should first happen, to the use 
that the wife (if she were the survivor and B should be then 
living) should receive an annuity of 1501. during the several 
lives of herself and of B ; but if B were dead at the decease or 
bankruptcy of the husband, or should die before the wife, 
then from such death or bankruptcy of the husband, and 
the death of B, the wife should receive an annuity of 200L 
for life payable quarterly, the first pajrment to be made on 
the quarter-day next after the death or bankruptcy of the 
husband. The annuities were declared to be in bar of dower^ 
and the wife's claims upon her husband's real and personal 
estates, and were to be paid to and for the wife's separate 
use ; they were also secured firom the death or bankruptcy 
of the husband by two terms of years created out of his 
real estates, and subject thereto, the ultimate use of the lands 
was limited to the husband, his heirs, executors, &c. At the 
marriage the husband was not a trader, nor did he intend to 
be so, he having been educated for the church ; but in 1802 
he became a cotton manufacturer, and in January, 1811, he 
became a bankrupt, B being then living. A bill by the wife 
claiming the annuity of 1501. was dismissed by the Master of 
the Rolls, from which decree she appealed ; and Lord Eldon 
said that the facts were, that the husband at the time of the 

(a) 19Ves.88. 



UPON WIFE ON HIS BANKKDPTCY. 143 

marriage was not indebted^ and had no formed purpose of en- 
tering into trade, but having been intended for the church 
he changed his purpose, entered into trade, and became a 
bankru]^. The question was, whether a provision of this 
kind could be sustained against creditors by charging his 
estate as against their right under tihe commission with the 
annuity to which the wife would upon his death have an un- 
doubted title. His Lordship then said, he had vainly en- 
deavoured to apply the principle of those cases which turned 
upon the fact that a man not indebted nor a trader at the 
time made a settlement without reference to debts to be 
contracted in iuture, and to the fixture event of bankruptcy, 
but that the present case had no resemblance to those ; that 
the present settlement looked forward to a change of inten- 
tion, to the purpose of becoming a trader, and also expressly 
to the possible consequences of that purpose, and thus looking 
forward to such a changeof purpose and to such consequences, 
it was a limitation by the eflfect of which the estate would go 
to the creditors, that change being adopted with the express 
object of taking the case out of the reach of the bankrupt 
laws. And as to the consideration from the covenant of the 
father, which, although it might perhaps prove worth little 
or nothing, was to be regarded as a consideration with refer- 
ence to all the provisions of the settlement ; and that although 
an annuity might have been provided by the settlement for the 
wife in all events, yet it was not competent for a party giving a 
consideration for a contract which was a direct fraud upon the 
bankrupt laws to have the benefit of it. His Lordship then 
said, that he could not assimilate this transaction to the case 
of the wife's property limited until the bankruptcy of her 
husband ; nor to that of a lease made determinable by the 
badn*uptcy of the lessee, which was a reservation by the 
owner of the property of a power over it ; nor to the case 
ex parte Winchester (a) and others, where, as the contingency 
happened previously to the bankruptcy, the debt was prove- 

(a) 1 Atk.116. 



144 BUT husband's interest in wife's pbopebty 

able ; nor to the case put by Lord Kenyon (a), and observed 
upon by Lord Redesdale (J), of a bond payable immediately 
and given by a trader upon his marriage to trustees to secure 
a provision for his wife and children. His Lordship there- 
fore confirmed the decree, (c) 

6. But a trust may be created of the husband's property 
for the maintenance of his wife and children, which will be 
valid on his bankruptcy, (d) 

7. And by articles or settlement before the marriage, the 
wife's property, in which the husband might have had, if 
not a bankrupt, either a partial interest with her, or a separate 
one, may be limited to her husband until he become a bank- 
rupt or insolvent, and from either event to the wife's separate 
use for life, and after her death to the children of the mar- 
riage, (e) In such a case the subsequent creditors of the 
husband cannot be considered as defrauded, because the 
wife, whilst single, dealt only with her own property in con- 
templation of the marriage, and she was at liberty to settle 
it in such manner and upon such terms as she and her in- 
tended husband pleased. There is nothing improper in her 
or her friends providing against the insolvency of the husband, 
and stipulating for a return of her own property for the 
support of herself and family in the event of such insolvency, 
by which he is rendered incapable of performing that duty 
out of his own* The first authority upon this subject was 
Lockyer v. Savage (/), which has ever since been followed ;• 
and in ex parte Cook, after stated. Lord Eldon said that this 
doctrine ought to be considered as now settled. 

8. In ex parte Hinton (^), Fitz, the husband, became 
bankrupt in 1805. In 1794, by settlement before his 



(a) See Staines v. Planck, 8 Term (d) See Page v» Waj, 3 Beay. 
Rep. 389. 20 : Kearsley v. Woodcock, 3 Hare, 

(b) 1 Sch. & Lef. 48. 185. 

(c) See also ex parte Oxley, 1 (c) Ex parte Cooke, 8 Ves. 356. 
Ball & B. 257 : and ex parte Taaffe, (/) 2 Stra. 947. 

1 Glyn & J. 1 10. (s) 14 Ves. 598. 



ttAT BE DETERMINED ON HIS BANKRUPTCY. 145 

marriage with Elizabeth Randall, 54:01. (her property) was 
assigned to the petitioner, her trustee, with power to lend 
the money to the husband, to whom 500Z., part of it, 
was advanced upon his bond, dated in June, 1794, to be 
repaid on the 18th of December then next. The settlement 
recited the bond, and declared that if the marriage took 
effect, the bond and money should be in trust, that the trustees 
(of whom the petitioner was the survivor) should, when 
they thought proper, recover and receive the principal sum, 
and pay the interest to the husband for life, if he so long 
continued solvent ; but if he became a bankrupt, then to pay 
the interest to the wife, if she survived him, for life, for her 
separate use, and to her separate receipt, as if she were a 
feme sole ; but if she were then dead, then to permit the 
500L to be enjoyed by the children of the marriage, but if 
no children who attained twenty-one, then the bankrupt was 
to be intitled to it absolutely. The wife died leaving one 
child, and to prove this debt was the prayer of the petition. 
And Lord Eldon* said, that upon the authority of the case 
in Strange (a), which had been followed by Lord Thurlow, 
the trustee was intitled to prove this debt, upon the dis- 
tinction that this money was part of the wife's property, not 
the bankrupt's. That the case in Strange was also an au- 
thority that money (the wife's property) might be limited 
upon the bankruptcy of the husband. That the articles 
being before marriage, the wife was a purchaser for herself 
and the issue, who could have no remedy against the trustee. 
9. So in Lester i?. Garland (6), where the husband received 
a fortune of 50001. with his wife, and settled a sum of three 
per cent, reduced bank annuities, upon trust to pay the divi- 
dends to himself for life until he should become bankrupt or 
insolvent, with limitations over for the benefit of his wife 
and children in the event of his bankruptcy of insolvency, 
and it was provided that if he should survive his wife, and 

(a) Lockyer v. Savage^ 2 Stra. {b) 5 Sim. 205 ; Mont 471. 
947. 

VOL. 11. J- 



146 husband's intekbst in wifs'b fbopebty 

there should be no children of the marriage, and he should then 
be, or should have been $s bankrupt, fifteen sixty-sixths of 
the trust fund should be in trust &xt the nest of kin in, blood 
of the wife. Sir L. Shadwell, V. C, after remarking that 
the parties to the settlement must have agreed that fifteen 
sixty-sixths should belong to the next of kin of the wife, 
because they had calculated that at the then price of the 
stocks the 5000^^ the amount of the wife's fortune, would 
have purchased the amount of fifteen sixty-sixths of the wholq 
fund, and that though it was not so expressed in the settle*^ 
ment, he thought himself warranted by the general tenor 
and substance of it to declare that the settlement was to be 
considered precisely in the same manner as if the amount of 
the wife's fortune was 5000Z., and as if the 5000Z. had been 
invested in the purchase of three per cent, reduced annuities, 
held that the fifteen sixty-sixths were to be considered 
as that portion of the trust fund which was purchased with 
the wife's property, and that as to so much of that fund, the 
limitation over in the event of the bankruptcy or insolvency 
of the husband was good. 

11. So, also, in ea! parte Cooke (a), the wife, amongst other 
property, being possessed of 10,000^., it was agreed by articles 
of settlement before marriage, that the sum should be vested 
in trustees to pay to her separate use 200/. a year, and the 
surplus dividends to the husband, until he should become 
bankrupt or insolvent, and then in trust for her separate 
use, and after her death for the children of the marriage; 
but if there were none^ then the principal was to belong to 
the survivor of the husband and wife. And it was further 
agreed, that the residue of the wife's personal estate should 
be paid to her husband, if living when she attained twenty -one, 
in right of marriage, he first executing a bond, which he 
covenanted to do, in the penalty of 10,000/., conditioned to 
pay 5000/. at the end of six months from the date of the 

(a) 8 Ves. 354. 



MAT BB DBTEBMINEB ON HIS BANESUFTCY. 147 

bond. And it was declared that the bond should be to the 
intent only, that in case the hasband should become bankrupt 
or insolvent, or if he should at his death be insolvent, 
then the jtrustees should forthwith put the bond in force, 
and be possessed of the money upon the same trusts as were 
declared of the 10,0002., except that the husband should not 
be intitled to the interest for life if he survived his wife, but 
that the principal should go upon her death as it would have 
done on both their deaths ; and that no suit should be insti* 
tuted on the bond, unless the husband became bankrupt or 
insolvent; also, that if he died without having become a 
bankrupt, &c., the bond should be delivered up, and the 
5000/. considered part of his personal estate. The marriage 
took effect, and the wife attained twenty-one, and performed 
her part of the articles. The trustees proved under the com- 
mission the 10,000/., which, with 5000/., the produce from the 
sale of part of her real estate, and the whole residue of her per- 
sonal estate, had been received by her husband. Ajid the ques- 
tion was, whether the bond debt of 5000Z. could also be proved ? 
And Lord Eldon determined that the wife was intitled to 
prove it, if not for that sum, yet for so much of the residue 
of the value of the real and personal estate beyond 10,000/., 
as might constitute any part of that 5000/. His Lordship 
said, that whatever inaccuracy there might be in that, the 
present was a settlement resting in covenant and articles. 
The marriage was upon an agreement to be carried into 
execution by future acts ; so that if there were any mode of 
sufficiently providing against bankruptcy, the Court ought 
substantially to provide against it in the execution of such 
an article. 

12. It appears from the authorities before stated, that 
Although the wife may reserve a power over her own property, 
and limit it by articles or settlement, so as to retake it to her 
separate use, or when lent to her husband, a dividend upon 
it in the event of his bankruptcy ; yet that she cannot effect 

this object at law by accepting a bond, with a condition to 

I- 2 



148 HUSBAim's BOND FOB WIFE's FORTUNE 

create a debt on that contingency; the efiect of such a' 
security (excluding the consideration of the policy of the 
bankrupt laws) being, as it is presumed, to raise no debt 
prior to the bankruptcy ; none such, therefore, as a legal 
debt, is capable of proof under the commission. But since 
equitable as well as legal demands may be proved, and a 
bond, although void at law, may be good in equity as evidence 
of a contract, if the husband's bond contain sufficient to show 
an agreement concerning the wife's property (as in the next 
case), and that it should be settled, in the event of her hus- 
band's insolvency, upon herself and family, a Court of Equity 
will support it (so far as the wife's fortune was the con- 
sideration) in the same manner as we have seen it will do 
when the transaction is by settlement, or by bond and 
settlement ; the Court making no difference between the cir- 
cumstance of the specific property being settled or lent to the 
husband, (a) 

13. Thus, in ex parte Hodgson (6), William Lowe, in con- 
templation of his marriage on the 6th of April, 1805, gave 
his bond to a trustee in the penalty of 700Z., reciting his in- 
tended marriage with Mary Orme ; in consequence whereof, 
and of the property which she was intitled to under the will 
of her father, it was agreed, that after the marriage, in case 
of the insolvency of Lowe at any time during their several 
lives, it should be lawful to William Bailey, the trustee on 
behalf of Mary Orme, to come in under any assignment or 
commission of bankruptcy, as a creditor, and to make proof, 
as well of the sum of 600Z., as of so much beyond that sum 
as could be ascertained, that Lowe should have received as the 
distributive share of Mary Orme in the personal estate of her 
father, and receive dividends, &c. ; and that the dividends 
when received should be paid and applied to the only proper 
use and behalf of Mary Orme, and not in any manner to be 



(a) 8 Ves. 357 : 1 Buck, 187. parte Young, 1 Buck, 179 ; 8 Mad. 

{b) 19 Ves. 206: see also ex 124. 



PAYABLE ON BANKEUPTCY, PROVBABLE. 149 

subject or liable to the debts, power, or control of her hus- 
band ; and that Lowe, if his wife survived him, should leave 
by will, or give by settlement, an annuity of 501. to her 
for life; and in case of children, should give so much of 
her fortune as he should have received among them 
equally, and declaring the condition of the bond accord- 
ingly. Mrs. Lowe was intitled to a legacy of 500L under 
her Other's will, and to SOL under the will of her brother, 
who bequeathed the residue of his personal estate equally 
among his sisters. Both sums were received by William 
Lowe. On the 28th of August, 1811, a commission of 
bankruptcy issued against Lowe. The trustees attempting 
to prove the 500/. and 80/., a claim was admitted ; and the 
petition, presented by the assignees, prayed that it might be 
expunged ; and Lord Eldon decided that the 80/. could not 
be proved. And with regard to the other sum, he said, he 
never saw such a security, it not providing that it should be 
forfeited if the party became insolvent ; on the contrary, that 
it was a bond in a certain sum, with a condition, that if the 
husband became insolvent, the party should prove and 
receive dividends under any commission of bankruptcy ; that 
he looked upon it as a marriage agreement, that the property 
of the ^e, payable on her marriage, and to which 8he might 
become intitled from her father, was what the husband was 
to have the uiBe of until his bankruptcy or insolvency. His 
Lordship said^ that if the stipulation were that the husband 
should possess his wife's estate, subject to return it in case 
he became a bankrupt, that would do ; for it was clear in 
that Court that h£r estate might be limited to him until 
he became bankrupt. The Court's declaration was, that 
proof of the 500/« might be admitted ; although in form 
ft bond, it was an agreement as to her estate, that it should 
be enjoyed by the husband till he became a bankrupt, and 
was to be considered, therefore, as a limitation of her 
estate until his bankruptcy. The claim of the 80/. was 
struck out. 

L 3 



150 HEN FOB FDBCHABE-HOKET 

14. In €x parte Cooke (a), Lord Eldon alluded to the 
power of a Court of Equity so to execute articles, or an 
executory agreement, as, consistently with the intention of 
the parties, to provide substantially against the husband's 
insolvency; but whether the Court had such a power to 
alter or modify a settlement, a deed executed and complete, 
and having nothing executory about it, in order to effectuate 
-such intention, seems to have been doubted previously to 
the year 1810, when, for the purpose of settling the question. 
Lord Manners, Chancellor of Ireland, consulted Lords Eldon 
and Redesdale upon the following ca«e, whether, when it 
appeared that the intention, upon executing a settlement, 
was that the fortune of the wife should be a provision for 
her, but by mistake it was made to appear the property of 
the husband, it was their Lordship*8 opinion, that the deed 
of settlement could be so far corrected to meet the intention 
of the parties, as to amend the mistaken form of the deed, 
and mould it so as to be a valid settlement ? Both opinions 
having agreed in the power of a Court of Equity to make 
such correction and alteration. Lord Manners acted upon 
them, and the point appears to be now so settled, {b) 

15. In ex parte Dicken (c), a marriage settlemtent recited 
that the intended wife was intitled to freehold, leasehold, 
copyhold, and personal estate, of the value of 4000?. ; and 
that upon the treaty for the marriage, she had agreed to 
convey, assign, and surrender the freehold, leasehold, and 
copyhold estates to the husband, in consideration of which 
he had agreed to pay 4000?. to the trustees : the wife then 
conveyed and assigned the freeholds and leaseholds, and 
covenanted to surrender the copyholds to the husband, his 
heirs, &c. : the husband covenanted within six months to pay 
4000?. to the trustees, to be settled in trust for himself for 
life, and after his death, for the benefit of the wife and 

(a) Stated atUe^ p. 146. ibid. 260 : Leeter v. Garland, 5 Sim. 

{h) Higginson v. Eellj, 1 Ball & 223 : see tn/rd, p. 218* ' 
Beat 253—256 : Ex parte Verner, (c) 1 Buck, J 15. 



ON wifb's estate sold to husband. 151 

children of the marriage. The copyholds were not sur- 
rendered, and the monej Was not paid : but the wife after^ 
wards j^ned with the husband in a sale of part of the 
freehold estate, and on that occasion levied a fine of the 
whole, declaring the uses of that part to the purchaser, but 
without declaring any uses as to tlie remcdnder. She after^ 
wards joined in another fine, pursuant to a covenant in a 
trust deed executed by the husband t th^ trust deed being 
an act of bankruptcy, a commission issued against the 
husband. It was held that the trustees had a lien upon the 
freehold and copyhold estates remaining unsold, for the 
4000/., as being the purchase-money agreed to be paid for 
them, and that they might prove under the commission for 
so much as those estates should be insufficient to pay. The 
copyholds, not having been surrendered, were at law vested 
in the wife, and could not be claimed by the assignees without 
performance of the husband's covenant, (a) The fines could 
not affect the interest of the children, and were inoperative 
as against the wife with respect to the lands remaining un- 
sold, no uses having been declared of the first, and the trust 
deed leading the uses of the second having become void. 

16. In ex parte Shute (6), the husband on his marriage 
gave a bond to trustees to pay them 1200Z. upon trust for 
himself for life, with remainder to his intended wife during 
her life, with the usual limitations to the children of the 
marriage. On the faith of the bond, the husband was 
permitted to receive 150Z. as the marriage portion of his wife. 
On the husband's bankruptcy, it was held that the trustees 
were intitled to prove for the 1200/. the dividends to be 
invested in stock, the dividends of which were to be subject 
to the payment of interest to the wife on the 150/., and the 
remainder to the husband's creditors for life, and after his 
death upon the trusts of the bond. 

(a) See p. 100. an^, and Basevi Bligh, 385 ; 2 Law J. N. S. Bank, 
r. Serra, cited there. 25 : see also ex parte Wright^ 3 

{b) 3 Deac. & Ch. 1 ; Mont. & Mont. & Ayr. 387 ; 2 Deac 551. 

L 4 



152 TRUST FOR WIFE ON HUSBAND'S BANKRUPTCY. 

17. We may here notice the kte case of Manning v. 
Chambers (a), where, by a settlement, trustees were directed 
to stand possessed of a sum of stock on trust for the settlor 
for life, and after his decease, on trust to pay the dividends 
to B for his life, or untU he should become bankrupt ; and, 
on his becoming bankrupt, then to pay the dividends to the 
wife of B for her life, for her separate use. Seven days 
before the date of the settlement, a fiat in bankruptcy issued 
iimi B., who obtained hi. oer;ificale. The setL having 
afterwards died, it was held that B's wife, to the exclusion of 
his assignees, was intitled to the dividends for her separate 
use for life. 

(a) 16 Law J. N. S. Chan. 245. 



EFFECT OP ' SETTLEMENT WHERE WIFE INFANT. 



163 



CHAPTER V. 

OF THE EFFECT OF SETTLEMENTS WHERE THE WIFE IS AN 

INFANT. 



2. Personal estate in possession 

and leaseholds hound by settle' 
tnent, 

3. Not real estates, 

4. Principle upon which vnfe^s per- 

sonal estate bound. 

6. Where settlement binding on 

wife surviving. 

7. Settlement of choses in action 

not binding on wife. 

8. Or of property settled to her 

separate use. 



9. Effect of consent of parents or 
guardians. 

10. Where settlement made with ap- 

probation of the court. 

11. Settlement of unfe*s reed estate 

binding on husband. 

12. And on wife electing to tahe 

under settlement. 

13. Whether setdement of real es- 

tate of infant husband binding. 

14. Settlement of personalty of 

infant husband. 



1. It has been seen, that a female infant may be barred of 
her right to a distributive share of her husband's personal 
estate, by a settlement made before marriage with the appro- 
bation of her parents or guardians, (a) 

2. A settlement on the marriage of a female in&nt will 
also bind her personal estate, which would upon the marriage 
vest absolutely in the husband, or of leasehold estates which 
would survive to her, if not assigned to the husband. (6) 

3. On the other hand, it is now held (c), after consi- 
derable fluctuation of opinion (d)^ that a settlement on 



(a) VoL I. p. 457, ante. 

(b) TroUope v. Linton, 1 Sim. & 
Stu. 477. 

(c) Dumford v. Lane, 1 Bro. C. 
C. 106 : Milner v. Lord Harewood, 
18 Yes. 269: TroUope v. Linton, 
ubi sup. 

(d) See Cannel v. Buckle, 2 P. 



W. 243 : Harvey v. Ashley, 3 Atk. 
607 : Lucy v. Moore, 4 Bro. P. C. 
343, ed. TomL : May v. Hook, Go. 
Litt. 246 a, note : Peirson v. Peir- 
Bon, cited 1 Bro. C. C. 115 : Clough 
v. Clough, Wooddeson, yoL 3. p. 463 ; 
6 Yes. 710: Simson v. Jones, 2 
Buss. & M. 374. 



154 BFFBCrr OV SVITLEtfxarr 09 Wm^S F£tOPEBT7 

the marriage of a female infant will not bind her real 
estates. 

4. In many of the eariier cases, an opinion prevailed that 
parents and guardians had a general authority to bind the 
property of infants, by agreements on their marriage ; and 
that agreements of this nature Ti^re to be in all cases 
established, if fair and reasonable. This opinion, which in 
a great measure influenced the decision of Drury v. Drury, 
has been shaken by the cases which have settled that the 
infantas real estate cannot be bound j and the principle upon 
which the personal property is now held to be bound seems 
to be, that the marriage vests it in the husband, or places it 
under his control, and that it therefore becomes subject to 
the covenants entered into by him in the articles. 

5. Thus, in Williams v Williams (a), the husband had 
reduced the personal estate into possession, and Lord Thurlow 
held that it must be applied on the trusts of the settlement, 
" the husband having covenanted that what should come to 
him should be bound by the articles." (b) 

6. Upon this principle the settlement will not, in the event 
of the wife surviving^ be binding on her, witii respect to her 
choses in action, or to any reversionary or contingent interest 
which cannot vest in the husband, or which do not come 
within hia power during the coverture, (c) * 

7. It was held in aa earfy case (^), that a settlement of 
the choses in action of a female in&int w&s binding upon her 
although tbey were not reduced into poisession during the 
coverture. But this case can no longer be ootusidered an 
authority, and it has been directly overruled by Le Yasseur 
V. Scratton. (e) 

(a) 1 B. C. a 1S2. (d) Harr«7 fr. Afihlerf, 3 Atk. 

(b) See also 5 Madd. 164: 1 S. & 613 : see also Trollope v. Linton, 1 
St 485 : and 1 Yes. Sen. 877* S. h f>t. 476. 

(e) See Ellison v. Elwin, 13 Sin. (e) 14 Sim. 116 : see also Bas- 
309 : Ashton v. MQoagaU, 5 Bear, tings r. Ordc^ 1 1 Km. 905. 
56 : Medcalfe v. Ives, 1 Atk. 63 : 
Bush V. Dalwaj, 1 Yea. Sen. 19; S 
Atk. 530: and 1 B. C. C. 111. 



W&EBB SfiE IS At7 INFAKT. 



155 



8. Upon the principle that the settlement is that of the 
husband, and not of the wife, a settlement on the marriage 
of a female infant of personalty which is already settled to 
her separate use will not be binding on her. (a) 

9. On the same principle, if the settlement, so far as 
relates to the personal property of the wife, derives its effect 
from the covenant of the husband, the assent of the parents 
or guardians will not be in all cases indispensable, (b) 

10. It has been held that a settlement which is not 
binding upon a female infant, does not become so by being 
made with the approbation of the Court, (c) 

11. With respect to a marriage settlement of a female 
infant's real estate, though not binding upon her, it will be 
binding upon the husband, and will therefore prevent him 
from joining in any other disposition of the estate during the 
coverture, (d) 

12. It will also, upon the principle of election, become 
obligatory upon the wife or her heirs on accepting other 
benefits under it. (e) 

13. If the husband be an infant at the time of the mar- 
riage, it may be presumed, for the same reasons which apply 
to the case of a female infant, that a settlement of his real 
estate would not now be held to bind him : there are two 
cases in which a different view of the question appears to 
have been taken (/), but it is possible that they may have 
turned upon acts confirming the contract done by the husband 
when of age. 



(a) Simson v. Jones, 2 Rass. & 
M. S66 : and see Johnson v. John* 
SOD, 1 Keen, 648. 

(^) 1 Bro. C. C. Ill : see suprcl, 
vol. I. p. 462, and p. 107. of this 
Tolnme. 

(c) Simsoii V. Jones, 2 Russ. & 

M. 377. 

(d) Dnmford v. Lane, 1 B. C. C. 
106: see also Pimm v. Insall, 12 



Jur. 577: and Milner v. L. Hare- 
wood, 18 Ves. 276. 

(e) 18 Ves. 276 : 1 Bro. C. C. Ill : 
see 3 Atk. 613. 

(f) Strickland v. Coker, 2 Ch. 
Cas. 211, cited 3 Atk. 614 : War- 
burton V, Ljtton, 1764, cited in 
Lytton V. Lytton, 4 Bro. C. C. 440 : 
see Slooombe v, Glubb, 2 Bro. C. C. 
645. 



156 SETTLEMKNT WHEBB'WIPB INFANT. 

14. The principle on which the validity of marriage settle- 
ments of the personal property of female infants appears to 
rest, does not apply to similar settlements of the personal 
property of mdeii&nu. 

15. The subject of settlements where the infants are wards 
the Court of Chancery has been already considered, (a) 

(a) Chap. 13, sect 4, ante* 



husband's covenant to settle estate. 157 



CHAPTER VI. 

OF the HUSBAND'S COVENANT TO LEAVE OR SETTLE UPON 
HIS WIFE PERSONAL ESTATE; AND OF THE PERFORMANCE 
AND SATISFACTION OF SUCH COVENANTS 



SECTION L 



OF THE HUSBANDS COVENANT TO SETTLE ALL THE PERSONAL 
ESTATE OF WHICH HE WAS POSSESSED AT THE TIME OF THE 
COVENANT. 



2. Personalty hound from date of 

covenant, semble. 

3. JEfftct where personalty invested 

m land. 



4. Lewis V. Madocks, 
6. Randall y. milis. 

8. Observations thereon. 

9. Mr. Jacobus remarhs. 



1. It soiDetimes occurs that a husband previously to his 
marriage covenants or otherwise engages to convey or settle 
in favour of his wife, or of her and their children, all the 
personal estate of which he was possessed at the time of the 
covenant or engagement. 

2. Mr. Roper considers the e£fect of such a covenant to be 
to change the ownership of the property from the execution 
of the articles, and that the husband ceases to have any 
interest in it from that period, (a) 

3. " In such a case," he adds, " if the proceeds of that 
estate be ailerwards laid out by the husband in the purchase 
of real property in his own name, or otherwise, without 
reference to the trusts subsisting under the articles, the 

(a) 2 Bop. H. & W. 80. Mr. Ro- Yes. 263 ; and Garthshore t^. Chalie, 
per refers to Campion v. Cotton, 17 10 Yes. 20. 



158 COVENANT TO SETTLE ALL FEBSONAL ESTATE 

money so laid out may be followed and demanded out of 
the real estate for the benefit of the persons intitled to it 
under the articles ; but, subject to such a lien or charge, the 
estate itself (as appears to be the better opinion) will, after 
the husband's death, be considered in equity as belonging to 
lus heir or devisee." 

4. Thus, it was decided by Lord Eldon in the case of Lewis 
V. Madocks (a), that where the husband agrees, in contem- 
plation of marriage, to devise, convey, or assure to his wife 
all the personal estate and e£fects that he during the marriage 
shall become possessed of, and he purchases lands with the 
property subjected to his marriage contract, and dies, such 
lands will belong to the heir, charged with the amount of the 
purchase-money in favour of the wife, (b) Upon this 
subject Lord Eldon expressed himself as follows : " The claim 
of the wife is put in this way, that personal property bound 
by the trust or obligation is traced into the purchase of real 
estate, which estate must therefore be hers. But I do not 
know of any case in its circumstances sufficiently like this 
to authorize me to hold that doctrine. I am prepared to say, 
that the personal estate bound by this obligation, and which 
has been laid out in this real estate, is personal property that 
may be demanded out of the real estate ; that the estate is 
chargeable with it, but that it was not so purchased with it 
that the estate should be decreed to belong not to the heir 
but to the wife." 

5. In one case, however, which arose upon articles of the 
above description, the specific lands purchased with the trust 
money were considered as belonging to the cestui que trusts 
under the articles, and were decreed to be conveyed 
accordingly. 

6. This was the case of Randall v. Willis, (c) There the 

(a) 8 Vefl. 150: 17Ve8.48. (c) 5 Ves. 262; Beg. Lib. B. 

{b) See Lane v. Dighton, Ambl. 1799, fa 46^. 
409 : and Lench v» Lench, 10 Ye& 
516. : 



THKN BELONOINO TO HUSBAND. 159 

huaband covenanted in marriage articles that he would> 
withixk three months after the marriage, convey, release, 
surrender, or assure certain estates to the uses therein 
mentioned, and also aU and singular his personal estate 
of what nature and kind soever/' A settlement was ex- 
ecuted after the marriage, by which the husband conveyed 
and assigned all the personal estate and effects of which he 
was possessed at the time of the execution of the articles 
to the same uses as the lands were by the articles cove- 
nanted and by the aetilemient actually settled. At the 
time of the articles the husband was possessed of personal 
property to the amount of 6000Z. The husband diedj 
but in his lifetime he invested the proceeds of the per- 
wnal property in the purchase of lands, which he devisai 
by his will. Upon a question between his surviving wife 
and the devisee, the Court of Chancery, after declaring the 
personal estate which the husband was possessed of at the 
time of the articles, and had been invested in the purchase 
of lands, to be subject to such articles, ordered the specific 
lands so purchased to be conveyed to the wife, and directed 
an account of the rents which had been received by the 
husband's devisee. 

7. Mr. Roper doubts whether this case can be considered 
as an authority, on the ground that there was no cove- 
nant by the husband to invest in lands, so that no lien 
was created in favour of the wife (a) ; and considers that 
it cannot be reconciled with the case of Lewis r. Ma- 
docks, {h) 

8. The cases, however, seem to be distinguishable. In 
Bandall v. Willis, the Court exercised its usual power of 
rectifying settlements made in pursuance of articles by making 
such a decree as it would have done if the settlement had 
contained the proper proviso as to lands purchased. In 
Lewis V. Madocks, where the husb^oid had given a bond ^' to 

(a) 2 Rop. H. & W. 82. (Jb) Ibid. 33. 



« I 



160 ME. Jacob's obseetations. 

devise, convey, or assure" his personal estate, the Court had 
not the power of thus interfering, no settlement having been 
made in pursuance of the bond, and the case not being one 
of articles necessarily to be carried into effect by a formal 
settlement, as the husband had reserved to himself the option 
of devising the property instead of conveying it. In thia 
case, therefore, there was no ground for holding that the 
specific estates purchased with the money belonged to the 
cestui que trusts. 

9. Mr. Jacob, after noticing that the covenant in Randall v. 
WilliajWhichhadbeeu inaccurately cited by Mr. Roper, was in 
the words in which it has been just stated, observes : — "This 
covenant was spoken of in Lewis v. Madocks (a) as one 
which attached upon the personal estate of which the husband 
was then possessed, or of which he might be possessed, within 
the three months. But from the judgment of the Lord 
Chancellor, it appears that he put a different construction 
upon it ; he thought that it obviously could not mean that 
there should be a specific settlement of every article of per- 
sonal estate, that, within the period allowed for making the 
settlement, the husband might be possessed of. His Lord- 
ship's view of the meaning of the covenant appears to have 
been, that it applied to the residue of the personal estate of 
;h the husband should be possessed at his death ; but 
in order to prevent him from disappointing its object, 
settlement made in pursuance of the articles ought to 
J contained a proviso, that any real estate which he might 
:hase should be considered as personalty for the purpose of 
settlement. (6) If this view was correct, it followed that 
estates which the husband had purchased were to be 
ted in the same manner as if the settlement had contained 
proviso. The language of the decree is not strictly con- 
lable to the opinion expressed by the Court : this may 
laps have arisen from the frame of the bill, the prayer 

(a) 8 Ves. 150. (*) 5 Ves. 274. 



EFFECT WHERE PERSONALTY INVESTED IN LAND. 161 

of whicli extended only to lands purchased with the personal 
estate of which the husband was possessed at the date of the 
articles. The decree does, not however, adopt the notion 
that the covenant attached upon all the personal estate at 
that time : for on that supposition it would have been de* 
clared that the widow was to stand as a creditor for so 
much of the personal estate of which the husband was then 
possessed, as had not been laid out in land. The decree, 
however, proceeds to direct the usual accounts of his personal 
estate possessed by his executrix, and of his debts, apparently 
on the idea of the widow being intitled under the covenant 
to the residue of his personal estate at the time of iiis death, 
after payment of his debts." (a) 



SECTION n. 

OF THE HUSBAND'S COVENANT TO SETTLE ALL THE PERSONAL *^^V^J '-^^' 
ESTATE OF WHICH HE SHOULD BE POSSESSED DURING THE ^ 
MARRIAGE. 



1. Effect where personal estate 

stibject to covenant invested 
by husband in land. 

2. Lewis y. Madocks. 



3. What personal estate subject to 

covenant 

4. Effect where husband borrows 

money and invests in land 



1. It was decided in Lewis v. Madocks, as was stated in 
the preceding section, that where the husband has agreed to 
settle the personal estate which he should be possessed of 
during the marriage, and he lays out the personal estate in 
lands, the lands will belong to the heir, charged with the 
amount of the purchase-money in favour of the wife. 

2. In that case the husband by his bond previously to 

(a) 2 Rop. FL & W. 31 n. 
VOL. n. M 



163 flVFEOT WHSBE FEBSQNALTr HTVESTED IN LAND. 

marriage engaged to devise^ convey, or assure all such goods, 
chattels, personal estate, and effects as he at any time 
during the joint lives of himself and his then intended wife 
should be possessed of^ to their joint use, and to the use of 
the survivor of them for ever. He, after the marriage, 
purchased lands for 16002., such sum being made up of 6002. 
his own money, and the residue, viz* 10002., with ill. for the 
expenses attending the purchase, being boirowed by him 
upon his own personal security. Of the 10212. borrowed, the 
husband discharged 5002., and died, leaving 5^12. unsatisfied. 
He also, during his life, expended 6002* in building a dweO** 
ing-house, and in lasting improvements upon the estate. His 
widow and executrix paid about 1862. in discharge of his 
remaining debts, funeral and testamentary expenses; and 
she, before a second marriage, laid out 3532. in repairs and 
lasting improvements upon the purchased lands, and in re- 
demption of the land-tax ; into the possession of which lands 
she had entered upon her husband's death. The husband's 
personal estate at his decease was 5732. Lord Eldon 
decided that the 6002., the husband's own money, and the 
5002. borrowed, but afterwards paid off by him, were on the 
same footing, and were to be considered as his personal 
estate laid out, and that the remainder of the sum borrowed 
and not discharged was to be considered the debt of the 
purchased estate ; that as to lasting improvements made by 
the widow, since the money advanced by her on that account 
was bonA fide laid out, she was intitled to an inquiry as to it ; 
and with respect to the 1862., his Lordship held that such 
sum did not fall within the obligation, observing, " that a 
great proportion of the debts, about 1862.^ consisted of such 
particulars, as, in the ordinary course of living in the last 
year of a man's life, he would incur, with the exception of 
some small quit rents, but which also would be due from him 
in the course of a proper application of his income, and that 
they and such particulars could hardly be represented as 
debts incurred, so as that the payment of them would be a 



WHAT FBOFEBTT SUBJECT TO COyENANT. 163 

breach of the husband's obligation under the bond ; that it 
would be entering into impracticable minuteness to give the 
wife credit against the real estate for any of the items paid 
in that schedule;'^ and his Lordship concluded with the 
observation, ^ that if persons would enter into an engagement 
so difficult in construction and application, they must not: 
expect fix>m a court of justice relief so minute in that respect." 
The final decree declared that the widow was intitled to 
the 6002. and bOOLj with interest firom her husband's death ; 
and inquiries were directed as to other matters. 

3. What power remuns with the husband over his personal 
estate, after entering into so loose and indefinite a covenant 
as that in Lewis v. Madocks, depends, as Mr. Boper 
remarks, upon the construction of the covenant as to what 
personal properly it attaches, when the parties themselves 
have been silent upon the subject. ^^ Such a covenant," he 
observes (a), " is very difficult to execute, yet a CJourt of 
£quity wiU perform it so far as it is able* When it finds a 
solid subject of personal estate during the marriage, it will 
attach it to the covenant, rather than render such covenant 
altogether nugatory. But to expect that a court of justice, in 
tife construction of such a covenant, should descend to the 
minuiuB of every petty receipt and expenditure of the 
husband during the marriage for the purpose^ of binding 
them by the contract, would be unreasonable. The covenant, 
however, will be considered as embracing every species of 
personal property which the husband shall become possessed 
of during the coverture, falling under the denomination of 
prindpal or ci^ital, but not income arising from capital, 
expended by the husband in the usual mode of applying such 
species of property, as for the support and oomfort of 
himsdf, wife, and family, and in the discharge of debts con- 
tracted fi>r those purposes. Lord Eldon accordingly observed 
during the argument of the case of Lewis v. Madocks (&), 

(a) 2 Rop. H. & W. 36. (b) 17 Yea. 56. 

M 2 



164 EEFECT WHEBE HUSBAND BOBBOWS MOKET, 

Hliat he could not adopt the construction that annual 
produce, for instance, dividends of stock, was property ac- 
quired during the coverture in the sense of the bond, except 
only to the extent in which the husband himself might think 
proper to lay up that produce as capital, otherwise that he 
and his wife would not be at liberty to expend one shilling.' 
From this exception it is to be inferred that annual income 
expended otherwise than in the usual and customary manner, 
as above, will not be exempted from the operation of the 
covenant, as if it be applied in the discharge of gross sums 
of money which the husband had borrowed ; because those 
sums from their nature being to be considered as capital 
received by him during the coverture, and therefore within 
the compass of the covenant, the money of the husband applied 
in their discharge must be considered as partaking of the 
nature of the debt liquidated, and treated by him as savings 
and capital. Savings from income, therefore, may form 
capital, and for that reason be comprehended within the 
terms of the covenant ; and to that effect Lord Eldon ex- 
pressed an opinion in Lewis v. Madocks, observing that if a 
sum of 500L which had been borrowed and discharged by 
the husband, had been paid by him out of his savings, His 
Lordship was of opinion that such sum primd facie would be 
personal estate within the husband's agreement, as having 
been applied in paying debts, (a) " 

4. Upon the widow's right where her husband having 
entered into such a covenant borrows money, and invests it 
in land, Mr. Roper observes (b) : " Since money borrowed is 
to be taken as personal estate acquired by the husband 
during the marriage within the terms of this his covenant, if 
the husband take up money upon his personal security, and 
invest it with part of his own in the purchase of lands, and 
he afterwards discharges the money lent to him, his widow 
will be intitled to reimbursement out of the purchased 

(a) 17 Ves. 58. (b^ 2 Bop. H. & W. 37. 



AND INVESTS IN LAND. 165 

estate, with interest from his death ; or if it remain unpaid 
at his death, it would seem that she is intitled to have it 
discharged out of the real estate." In such cases, who is to 
satisfy the claim of the creditor is a question between the 
widow and her husband's heir or devisee. Upon this point 
Lord Eldon put the following case in that of Lewis v. 
Madocks (a) : ^ Suppose the husband, possessing 600Z., had 
borrowed 600Z., and bought an estate of the value of 1200/., 
and died that moment. If the former sum be to answer for 
the money borrowed, the wife gets nothing by the covenant 
under such circumstances. I incline to think that the 
money borrowed must be considered personal estate of 
which he was possessed. At least that point is fit for dis- 
cussion, that the husband having borrowed the money, 
became possessed of it; that all which he had possessed 
became subject to the uses of the settlement, but as personal 
estate ; and then the widow would with propriety be called 
upon to pay the 600Z., for she would have the other for her 
own benefit.' 

" The subject last considered was the equity of the widow 
under the covenant, as against the husband's heir or devisee, 
when part of the money invested in the purchase of lands 
was borrowed upon his personal security, and afterwards 
paid off by him before his death, or left by him subsisting at 
that period. But it may be ask^d, whether the nature of 
the creditor's security will alter that equity ? And it is 
presum^ that it will not. In the first case it is conceived 
that the personal estate of the husband applied in dis- 
charging such security (supposing it to be a mortgage of the 
estate), ought to be made good out of the property purchased, 
since such personalty was bound by the prior covenant or 
agreement of the husband to make the settlement ; and, in 
the second case, that although the mortgagee should obtain 
payment of his debt out of the husband's personal assets 

(a) 8 Ves. 157. 
M 3 



166 C0VBNA17T TO BBQT3XATH IBBS0HALT7 TO WHICH 

bound by the covenant, jet that in equity the widow would 
have a right to be refunded out of the lands purchased the 
amount of the personal estate so applied." 



/f.<^^,^t. 



SECTION HL 

OF THE HUSBAND'S COVENANT THAT HIS WIPE SHALL HAVE, 
OR THAT HE WILL LEAVE TO HER THE WHOLE OR PART OF 
THE PERSONAL ESTATE WHICH HE SHOULI> fi£ POSSESSED 
OF OR INTITLED TO AT HIS DEATH. 



1. What ]^roperty mhject to eove^ 

nant 
4. Husband may defeat eavenatU 

by disposition in his life. 
6. But disposition must be complete* 



6. And no interest reserved to A««- 

band, 
la Effect of partial gift io wife 
absolute^ inOtled under cfh- 
venant* 



1. The property to which such covenant attaches is the 
whole or a proportion of the clear personal estate of the 
covenantor at his death, i. e. upon the residue after payment 
of all his debts and funeral expenses. It differs so &r in 
effect from the preceding covenant, that the husband is at 
full liberty during his life to sell, alien, dispose of, or 
incumber the whole of his personal estate, and utterly to 
defeat his covenant ; yet his engagement is quite consistent 
with this construction ; it only stipulates that the whole or 
part of that which can be considered his personal property 
shall be subject to its operation, which is only ao much as 
may remain after all his other band fide obligations shall 
have been satisfied, (a) 

2. In Cochran v. Graham (&), a deed, executed upon a 
separation agreed upon between husband and wife, contained ^ 
a proviso, that if she survived him, and they were at that 



(a) 10 Yes. 20. 



(£) 19 Yea. 63. 



HUSBAKD SHALL BE nrriTLBD AT HIS DBATH. 167 

time living apart according to the instrument, then that she 
should be intitled to receive her dower, and thirds of all the 
real and personal estates whatsoever of which he should die 
seised or possessed during the marriage. They lived sepa* 
rate until the husband's death, who by will bequeathed to 
her one shilling only, and di^osed of the whole of his per* 
sonal property, and appointed executors* A question aros^ 
upon the construction of the proviso, viz. whether it was an 
absolute agreement of the husband to leave his wife such a por* 
tion of his personal estate as she should be intitled to under the 
Statute of distribution, if he had died intestate, or merely to 
place her in the same situation, in regard to her dower and 
thirds, as if she had not been living apart from him ; for if the 
former was the construction, then she would be intitled to 
her distributive share of his personal estate notwithstanding 
the will. But Lord Eldon decided, that the meaning of the 
clause was no more than that, living separate, she should 
stand precisely in the same situation as if not living apart, 
with regard to dower and thirds, and consequently that 
if there had be^i no separation, since the husband might 
have barred her interest under the statute by his will, he 
might equally do so, notwithstanding the terms of the pro- 
viso. His Lordship also observed, that if the covenant could 
be considered as one to leave her such portion of her hus<- 
band's personal estate as above, he might have spent all his 
substance, but could not have reserved to himself for his 
own benefit any part of that which was the subject of such a 
covenant. 

8. So, in the case of Kirkham v. Needham (a), the husband 
previous to marriage settled part of his real estates, and co- 
venanted that he would by will or otherwise, give, devise. 



(a) 3 B. & AM. 531. See alflo as WiUis «. Black, 1 S. & St 525 ; 

to tbe eflbct of covenants of this de- S. C. ^n appeal, 4 B«ss. 170 : Need- 

Bcripdon, Casack v. Cusack, 5 B. P. ham v. Smith, 4 Buss. 318 : M'Don- 

C. ed. TomL 116: Prebble v. Bog- nell v. M'Donnell, 4 Dru. & War. 376. 
burst, 1 Bwan, 309; 7 T«iuit 538 : 

M 4 



168 HUSBAND MAT DISPOSE OF PROFEBTT IN HIS LIEB. 

and bequeath all otber his real estates, and also all his per- 
sonal estate and effects whatsoever and wheresoever, to his 
children. It was decided that this applied only to such real 
and personal property as he should be possessed of at his 
death, and that he might therefore without the breach of a 
covenant sell an estate which h^ was seised of at the mar- 
riage, but which was not included in the settlement. 

4. It appears, then, that the husband has the complete 
ownership and power over his personal property, notwith- 
standing his covenant ; but the exercise of that power must 
be by a complete act in his lifetime, and not by his will (a), 
because the covenant takes precedency of the will, and such 
a disposition would be considered a fraud upon his engage- 
ment, in analogy to the rule applicable to the like dispositions 
by a freeman of the city of London, of his personal estate in 
opposition to his agreement, that it should be distributed ac- 
cording to the custom, whch has been before considered, (b) 

5. But the husband's disposition of his personal property 
in his lifetime must be complete, an entire departure with 
all his interest in it, in order to prevent the transaction 
being set aside as a device to elude his covenant. In re- 
quiring this total change of property, the law appears to be 
strict ; for against the husband's diminution of his estate by 
absolute gift during his life, in fraud of his engagement, the 
law considers his own interest and convenience a sufficient 
guard ; but it does not draw the same inference or conclusion 
when, without any diminution of his own enjoyment, he ex- 
ercises a mere posthumous bounty, although by an irrevocable 
instrument. The spirit of the covenant requires, that every 
disposition by him of his personal estate should be excluded 
which is in effect testamentary, although not such in form. 
The gift, therefore, or other disposal by the husband of his 
personal estate, affcer entering into such a covenant as that 
under consideration, ought to be absolute and entire; he ought 

(a) 19 Vea. 71. (6) Suprit, vol. i. p. 297. 



BUT DISPOSITION MUST BE COMPLETE. 169 

to part with all his interest, and reserve no partial benefit to 
himsdf. 

6. K, then, he by deed make an absolute disposition of his 
personal property, with a reservation to himself of the interest 
for life, this will be a fraud upon his covenant, an attempt to 
elude it without inconvenience to himself, by an act in efiect 
testamentary, (a) 

7. Thus, in Fortescue v. Hennah (J), a father on the mar- 
riage of his daughter covenanted that she, her husband and 
children, should on his death have a moiety of all the real 
and personal estate which he should then be seised or pos- 
sessed of. He afterwards transferred several sums in trust 
for himself for life, with remainder over : it was held that 
these sums were subject to the covenant. 

8. In Bradish v. Bradish (c), a husband on his first 
marriage covenanted that a moiety of whatsoever substance 
he should be seised or possessed of at his death should go 
to the children of the marriage. By a deed executed after a 
second marriage, he assigned part of his property in trust 
for himself for life, with remainder to his second wife and 
her children. This was held void as against the children of 
the first marriage claiming under the covenant. 

9. In Hankes v. Jones (c2), a man on his marriage cove- 
nanted to give to the children of the marriage a third part 
of all his chattels, real and personal money, plate, jewels, or 
any other goods of what nature soever, which at the death of 
his wife he should be possessed of. Being possessed of a lease 
for years, he surrendered it, retaking a lease for lives re- 
newable for ever : this was held to be within the covenant. 

10. In Davies v. Davies (e), the husband on marriage 
covenanted to bequeath to his intended wife, all such goods, 
chattels, plate, and personal estate of which he should die 

(a) See Jones v. Martin, 3 Anst (b) 19 Yes. 67. 

882 : Bro. FarL Gas. ed. Toml. vol (c) 2 Ball & B. 479. 

6, p. 437, voL 8. p. 242 : 5 Yes. 266^ {d) 5 Bro. P. C. ed. TomL p. 136. 

note. (e) 10 Law J. Chan. 32* 



160 MB. Jacob's obsbbvations. 

devise, convey, or assure" his personal estate, the Court had 
not the power of thus interfering, no settlement having been 
made in pursuance of the bond, and the case not being one 
of articles necessarily to be carried into effect by a formal 
settlement, as the husband had reserved to himself the option 
of devising the property instead of conveying it. In this 
case, therefore, there was no ground for holding that the 
specific estates purchased with the money belonged to the 
cestui que trusts. 

9. Mr. Jacob, after noticing that the covenant in Randall v. 
WiUis, which had been inaccurately cited by Mr. Roper, was in 
the words in which it has been just stated, observes : — "This 
covenant was spoken of in Lewis r. Madocks (a) as one 
which attached upon the personal estate of which the husband 
was then possessed, or of which he might be possessed, within 
the three months. But from the judgment of the Lord 
Chancellor, it appears that he put a different construction 
upon it ; he thought that it obviously could not mean that 
there should be a specific settlement of every article of per- 
sonal estate, that, within the period allowed for making the 
settlement, the husband might be possessed of. His Lord- 
ship's view of the meaning of the covenant appears to have 
been, that it applied to the residue of the personal estate of 
which the husband should be possessed at his death ; but 
that in order to prevent him from disappointing its object, 
the settlement made in pursuance of the articles ought to 
have contained a proviso, that any real estate which he might 
purchase should be considered as personalty for the purpose of 
the settlement, (b) If this view was correct, it followed that 
any estates which the husband had purchased were to be 
treated in the same manner as if the settlement had contained 
that proviso. The language of the decree is not strictly con- 
formable to the opinion expressed by the Court : this may 
perhaps have arisen from the frame of the bill, the prayer 

(a) 8 Ves. 150. (b) 5 Ves. 274. 



EFFECT WHSBE FEBSONALXT INVESTED IN LAND. 161 

of which extended only to lands purchased with the personal 
estate of which the husband was possessed at the date of the 
articles. The decree does, not however, adopt the notion 
that the covenant attached upon all the personal estate at 
that time : for on that supposition it would have been de- 
clared that the widow was to stand as a creditor for so 
much of the personal estate of which the husband was then 
possessed, as had not been laid out in land. The decree, 
however, proceeds to direct the usual accounts of his personal 
estate possessed by his executrix, and of his debts, apparently 
on the idea of the widow being intitled under the covenant 
to the residue of his personal estate at the time of ids death, 
after payment of his debts." (a) 



SECTION n. 

OF THE HUSBAND'S COVENANT TO SETTLE ALL THE PERSONAL ^-^/-^ *^^^- 
ESTATE OF WHICH HE SHOULD BE POSSESSED DURING THE ^ 
MARRIAGE. 



1. Effect where personal estate 

subject to covenant invested 
by husband in land. 

2. Lewis y. Madochs, 



3. What personal estate subject to 

covenant 

4. Effect where husband borrows 

money and invests in land. 



1. It was decided in Lewis v. Madocks, as was stated in 
the preceding section, that where the husband has agreed to 
settle the personal estate which he should be possessed of 
during the marriage, and he lays out the personal estate in 
lands, the lands will belong to the heir, charged with the 
amount of the purchase-money in favour of the wife. 

2. In that case the husband by his bond previously to 

(a) 2 Hop. H. & W. 31 n. 
VOL. n. M 



172 THOUGH SUM UNDER COVENANT 

this difference was not permitted to repel the legal pre- 
sumption of perfonnance, which is the case when the ques- 
tion arises upon satisfaction, as will afterwards appear when 
the law upon that subject is considered. 

7. In Garthshore v. Chalie (a), Lord Eldon expressed him- 
self in relation to the above two cases to the following 
effect : " They are distinct authorities, that where a hus- 
band covenants to leave or pay at his death a sum of money 
to a person who, independent of that engagement, by the rela- 
tion between them, and the provision of the law attaching 
upon it, will take a provision, the covenant is to be considered 
with reference to that ; and the Court will not look upon 
the slight difference between leaving and paying, nor whe- 
ther the payment is to be within three or six months. (6) 
In that respect there is always a difference upon what is to 
be taken in a sense at the end of twelve monies, but which, 
I agree, is, in another sense, to be taken from the death of 
the testator ; for the other period is only for convenience, 
and there is no doubt the property is vested at the death of 
the party ; and if a case were produced in which it was quite 
clear that there were no debts, the Court would give the 
fund to the party, notwithstanding there had not been a 
lapse of twelve months, (c) " 

8. It must be noticed, that the covenants in the above two 
cases of Blandy v. Widmore, and Lee v. D'Aranda, could not, 
from their construction, bo broken during the husband's life. 
There was therefore no obligation upon him to make any 
appropriation or settlement before his death. The money to 
be received under the covenants, and the wife's distributive 
share, were duties which became payable after the husband's 
decease ; so that the law presumed the latter to be left by 
the husband to arise out of his estate after his decease, in 

(a) 10 Yes. 13. . (c) See Lord Eldon^s observations 

(6) Which occurred in the two upon the two cases referred to in the 

stated cases of Bkndj v. Widmore, last note, in the case of Twisden v. 

and Lee v. I^Aranda. Twisden, 9 Yes. 426. 



PAYABLE BEFORE DISTRIBUTIVE SHARE. 173 

performance of his covenant, which was to be discharged out 
of the same estate. But if either of the covenants had been 
so framed as to have required the money to be settled at a 
period during the husband's life, and there had been a breach 
of it before his death, then he would have incurred a debt to 
the widow, which would have converted the question from 
one of performance into that of satisfaction, and in such, case, 
according to the rule applicable to that doctrine (as it will 
afterwards appear), the debt could only be satisfied by some- 
thing equally certain and beneficial. According to this dis- 
tinction between performance and satisfSa^tion, Sir Joseph 
Jekyll determined the case of Oliver v. Brigland alias Brig- 
house (a), in which the husband covenanted to pay for the 
benefit of his wife a sum of money within two years after the 
marriage, and that if he died his executors should pay it. 
He after si»viving those years died intestate, and his widow's 
distributive share of his personal estate was larger than the 
sum covenanted to be settled upon her ; yet since such share 
was of uncertain amount, and might or might not have 
equalled in value the debt under the covenant, his Honour 
decreed that it should not be taken in satisfaction of such 
debt, but that the widow should have both of them. 

9. It is necessary to remark that the case of Eirkman 
V. Kirkman (J), determined by Lord Thurlow, does not 
impugn the authorities of Blandy v. Widmore, and Lee 
t;. D'Aranda, although his Lordship does not appear to be 
thoroughly reconciled to them. That case was decided upon 
the proviso in the settlement, from which it was inferred that 
the legal presumption of performance was negatived, since 
the husband expressly stipulated that nothing thereiD-before 
contained, nor any provision thereby made or intended for 
the wife should, or should be construed to deprive her of 
any legal or customary rights to which she was or might 
become intitled ; nor deprive her from taking any provision 

(a) Cited 3 Atk. 420, and 1 Yes. Sen. 1. (b) I Bro. C. C 96. 



174 WHEBB HEALTT INCLDBID IN COTBHAFT. 

which he might give, bequeath, or leave her in any manner. 
It was therefore clear, that her interest in his personal 
estate arising from his intestacy could not be, nor be con- 
sidered, a performance of his covenant in the settlement to 
leave her at his death, or that his executors should pay to 
or for her use, either of the sums mentioned in it. 

10. In Garthshore v. Chalie (a). Lord Eldon acted upon 
the two cases of Blandy v, Widmore and Lee v. D'Aranda. 
There A, the husband, before his marriage with B, cove- 
nanted that, if he died before her without leaving a child 
then living or in venire sa mire, his heirs, &c, should, within 
six months after his death, pay, assign, &c. to or for the 
benefit of B five eighth parts of such real and personal 
estates as he should be seised of or intitled to at his decease, 
or if B survived him, and there should be a child of the mar- 
riage living at his death, or bom alive afterwards, then that 
his or her heirs, &c. should pay, assign, &c. to and for the 
benefit of B one half part of such real and personal estates 
as before mentioned. There was issue of the marriage 
living at A's death, and A died intestate in the lifetime of B« 
The question was, whether B's distributive share under the 
statute of distribution was to be considered a performance 
of A's covenant, i. e. whether B was intitled first to a moiety 
of his personal estate under the covenant, and also to one 
third of the remainder under the statute. Ajad Lord Eldon 
determined that B could only claim one*half of her husband's 
personal estate which he was possessed of at his decease ; and 
consequently that what she took by operation of law in con- 
sequence of her husband's intestacy, was to be considered in 
performance of his covenant, and that she could not daim 
both. 

11. It will not have escaped the reader's observation, that 
this case differed from the preceding authorities in the cir- 
cumstance that the property did not merely consist of per- 

(a) 10 Ves. 1 : and see Hamilton v. Jackson, 2 Jones & Lftt. 295. 



EFFSCT OV BQUTTABLE IKTSSTACT. 175 

flonalty , l^ut of real and personal estates ; and that the widow 
was not the only person in contemplation at .the time when 
the covenant was entered into, but also the children of the 
marriage, although no express provision was made for them. 
These differences were not overlooked in the judgment, but 
they were considered to be insufficient to take the case out 
of the principle upon which the before-mentioned cases were 
decided. 

12. Sir Thomas Plumer, M. B., proceeded still farther in 
the case of Goldsmid t;. Goldsmid (a), in which he decided, 
that if the widow take a distributive share of her husband's 
personal estate, not under an actual but a qwxsi intestacy, 
such share will be a performance of his covenant, that his 
executors should pay to her a sum of money at his death if 
^he survived hMH In that case the husband, by the articles 
before his marriage, covenanted, that if he died before his 
wife, his executors, &c. should, within three calendar months 
next after lus decease, pay to her 80002. He then made a 
win, and after directing his debts to be paid, appointed four 
parsons his executors, to whom he gave all his personal 
estate. He next directed that so much of his capital in 
business as should not be necessary to pay his debts, funeral 
expenses, charitable gifts, and for the support of his wife 
and family, should continue in it for three years, and then 
upon trust to divide the whole of his personal property in 
such ways and proportions as they thought right. He 
declared that if any of his family disputed the distribution, 
and proceeded to implead his executors in respect of it, such 
persons should be excluded from every benefit under his will. 
Two of the exectitors died before him, a third renounced the 
probate <A the will, and the fourth executor proved it, but 
never undertook the discretionary trusts, which under the 
circumstances could not be performed ; so that the testator^s 
residuary personal estate was necessarily to be distributed 

(a) 1 Swanst. 211. 



176 DOCTRINE OF PEBFOBMANCE. 

amongst his next of kin in the proportions directed by the 
statute of distribution. His Honor determined that the dis- 
tributive share was a performance by the husband of his 
covenant. The foundation-of the decree was that the widow 
having taken after her husband's death, in the events which 
happened, precisely the same share of his personal property 
as she would have done had he died actually intestate, 
the case was to be classed in principle with the preceding 
authorities. 

13. Upon this case the foUowing observations are made by 
Mr. Roper (a) : " It appears from the cases and the doctrine 
to be collected from them that this species of performance is 
a presumption of law arising upon the permission of the 
party leaving that to be done by the law in the distribution 
of his property which he would otherwise have done himself, 
and is founded upon the single circumstance that the party 
has abstained from doing any act whatsoever in regard to his 
estate. In such a case, the law raises a presumption that 
the share which provides for the widow was intended by her 
husband in performance of his covenant. It further appears 
that the presumption may be repelled by parol evidence, (b) 
These things being so, the principle of performance does not 
seem to apply to the last case, because the covenantor was 
not merely passive, but active, since he disposed of all his 
personal estate by will, and did not permit its distribution 
by dying legally and actually intestate. On the contrary, he 
meant to dispose of the whole of his estate, which disposition 
was alone prevented by accidents occurring after his death ; 
hence there is stronger evidence than that by parol to repel 
the legal presumption of intended performance." 

14. " But it may be doubted," as Mr. Jacob remarks (c), 
" whether this reasoning can correctly be applied to cases 
relating to the performance of the husband's covenant by a 
distributive share of his property devolving on his wife. 

(a) 2 Hop. H. & W. 50 . (c) 2 Hop. H. & W. 50 n, 

(b) 10 Ves. 10. 



ENTIRE COVENANT WILL NOT BE SPLIT. 177 

These cases do not seem to depend on any presumption of 
the husband's having purposely died intestate. They turn 
tipon the question, whether the share which the wife receives 
is a substantial compliance with the intention of the covenant : 
the Court for this purpose putting on the covenant an en- 
larged construction, with reference to the relation between 
the parties, and considering the intention to be that she 
shall receive the sum contracted for * without regarding the 
manner how;' (a) the question depends, therefore, merely 
upon the intention of the covenant, a point upon which it 
would be difficult to contend for the admissibility of extrinsic 
evidence. The passage in 10 Ves. 10, referred to by Mr. 

* 

Roper, where the Lord Chancellor speaks of receiving parol 
evidence, alludes to cases on the performance of covenants to 
purchase and settle estates, — a class of cases essentially 
distinct^ depending on the presumed or actual intention with 
which the purchase is made." (b) 

15. If the husband's covenant be entire, and the provision 
therein expressed to be secured to the wife is such that 
the covenant might be held to be in part performed by the 
widow's distributive share under her husband's intestacy, 
according to the preceding cases, and the remaining part 
could not be so considered ; then since the covenant is entire 
the Court will not split it, and hold a performance and a 
non-performance at the same time. 

16. Thus, if the husband covenants with trustees that his 
heirs, &c. should pay to them 6000Z. within a certain period 
after his death ; upon trust as to 1500Z. part of the sum 
for his widow absolutely if she survived him ; and as to 
the remaining sum of 4500Z., to pay the interest of it to 
her during her life or widowhood, since the last sum, 
not given absolutely to the widow, could not be considered 
satisfied by her distributive share ; neither could the 1500?. 
be so considered, although she took an absolute interest 

« 

(a) 1 Ves. Sen. 1. (b) See chap. 20. sect 8. ante. 

VOL. n. N 



178 WHEBE DISTBIBUnVE SHABE FABT FEBFOBMAKCS. 

in it. This was the ground of the decree in Couch r. 
Stratton. (a) 

17. But it will be no ground of objection to the application 
of the doctrine of performance, that the widow's distributive 
share is less than the amount of her provision under her 
husband's covenant, as it is in the instances of satisfaction 
after mentioned ; because the intention of the husband to 
perform his covenant by permitting a portion of his pro-> 
perty to devolve upon his widow, being an inference of 
law upon that permission when the two interests are of 
equal value or the latter more ; the inference is continued 
when the share is inferior in amount to the sum provided by 
the covenant ; so that if the money covenanted to be paid by 
the husband's executors, &c. be 1000/., and the widow's dis- 
tributive share amount only to 500/., such share will never- 
theless be a part-performance of the covenant, viz. to the 
extent of 500/. 

18. The reasonableness of this presumption appears £K>m 
a supposed case put by Lord Eldon in the case of Garthshore 
V. Chalie. (b) His Lordship said that " the Court adverting 
to the circumstance that the widow will take part of her 
husband's property at his death, it is difficult to say that if 
she receive 1000/. in discharge of 1000/., her residuary share, 
she takes it in satisfaction of 1000/. covenanted to be paid to 
her, as it is the full amount ; but that if such share amount 
only to 999/., she shall not merely have the additional pound, 
but the sum of 1999/., for that must be the consequence, 
where the residue may be only 2000/., and she may be con- 
tending with others than her children. That is not the 
natural or legal meaning of such a covenant." 

19. The widow's distributive share, however, will not be a 
performance of her husband's covenant that his executors shall 
raise an annuity out of his estate and pay it to her for her life. 
This point was so settled in the late case of Salisbury v. SaUs- 

(a) 4 Vee. 391. (b) 10 Ves. 16. 



i 



NOT PEBirOBMANCE OF COVESAST TO PAT AOTTOITr. 179 

bury, (a) Sir J. Wigram, V. C, remarked that the principle 
laid down in the cases of Blandy v. Widmore and Lee v. 
D'Axanda, and afterwards recognised by Lord Eldon in 
Garthshore v. Chalie, and by Sir Thomas Plumer in Goldsmid 
V. Goldsmid, had settled the practice of the Court in cases 
where the covenant was to leave, or that the executors 
should pay, a gross sum, and that it was difficult to see a dis- 
tinction in the case of an annuity. The question, however, 
arose whether the case of Couch v. Stratton was not an 
authority directly the other way. In that case, the cases 
of Blandy v. Widmore and Lee v. D'Aranda were both 
cited, and the whole question was argued by counsel of 
eminence. Lord Eldon had nevertheless expressed an 
opinion that the rule adopted by the Court in the case of a 
covenant to pay a gross sum was inapplicable to the case of 
a covenant to leave an annuity. That being so, he felt bound, 
though unable to distinguish the two cases in principle, to 
follow Couch V. Stratton, putting the case of course upon 
performance* 

(a) 12 Jur. 671. 



V 2 



180 



WHERE BEQUEST LESS THAN COVENANT, 



SECTION V, 

OF THE SATISFACTION OF COVENANTS AS DISTINGUISHED FROM 

THE PERFORMANCE OF THEM. 



1. Distinction between scUisf action 

and performance, 

2. No satisfaction where bequest 

less in amount than sum under 
covenant, 

3. Nor if bequest contingent or 

payable later. 

4. Haynes y. Mico. 

5. Mr, Jacobus remarks thereon, 

6. Adams v. Lavender, 

7. Remarks thereon, 

8. Bequest payable earlier and of 

equal amount a satisfaction. 



9. No satisfaction where the prO' 

visions of different nature, 
12. Nor where bequest expressed to 

be made from particular mO" 

tives. 
1 3, 1 9. Whether a bequest of a share 

or a residue is a satisfaction. 

20. Effect of gift of residue to two 

persons equally, 

21. Gift of residue not uncertain in 

amount a satisfaction, 

22. Where residue exceeds covenant 

23. Parol evidence. 



1. There is an important distinction between satisfaction 
and performance. Satisfaction, to use the language of Sir 
W. Grant (a), presumes intention ; it is something different 
from the subject of the contract, and substituted for it ; and 
the question always arises, was the thing done intended as a 
substitute for the thing covenanted ? a question entirely of 
intent; with reference to performance the question being — 
has that identical act which the party contracted to do been 
done? 

2. If the testamentary disposition to, or in favour of the 
wife, be inferior in value to the husband's covenant or obli- 
gation, the former will not be presumed or considered to 
have been given in satisfaction or in part satisfaction of the 
latter ; but the benefit which she takes under her husband's 



(a) In Goldsmid v, Goldsmid, 1 Swanst 219. 



OR CONTINGENT, OB PAYABLE LATEB. 181 

testament will be inferred to have been bequeathed to her as 
a bounty, and accumulative, (a) 

3. If the testamentary disposition be not so beneficial to 
the wife as her interest under the covenant or obligation of 
her husband, as when the legacy given to her depends 
upon a contingency (b) ; or where such legacy and the pro- 
vision by covenant or agreement are payable at diflferent 
times, and the latter is due at an earlier period than the 
former; these variations between the two provisions will 
repel the inference of satisfaction. 

4. An instance of the latter kind occurred in the case of 
Haynes v. Mico (c) ; the husband, upon his marriage, entered 
into a bond to trustees to leave his intended wife SOOL, payable 
in a month after his death, if she survived him. He, by will, 
gave to her 500Z., payable within six months after his decease. 
The question was, whether the legacy was to be taken in 
satisfaction of the 300Z. secured by the bond ? And Lord 
Thurlow decided in the negative; his Lordship observing^ 
that in Clark v. Sewell (d)j Lord Hardwicke laid down the 
rule, that where there was a diflTerence in any circumstance, 
between a legacy and the debt or obligation, the former 
should not be deemed a satisfaction ; therefore, in that case, 
the debt being payable in one month, and the legacy in six 
months, made a clear distinction, and repelled any pre* 
sumption of an intention in the testator to pay the debt. 

6. " It will be observed," as Mr. Jacob remarks (^), " that 
in this case the legacy differed from a literal compliance with 
the covenant, only in the time at which it was made payable, 
and on account of that difference it was held not to be a 
performance. This appears at first sight inconsistent with 
the cases relative to the performance of covenants by th6 
devolution of a distributive share, on the covenantor's in- 
testacy, in which, as it has been seen, such slight circum- 

(a) 1 Yes. Sen. 263. (d) 3 Atk. 96. 

(b) 2 P. W. 553 : 2 Atk. 426. {e) 2 Rop. H. & W. 

(c) 1 Bro. C. C. 129. 

N 3 



182 BIB. JACOB'S OBSEBVATIONS. 

Stances of difference have not been regarded, (a) And the 
case of Haynes v. Mico has therefore been sometimes ques* 
tioned. (b) There is, however, this distinction between the 
performance of a covenant by a legacy, and by a distributive 
share : that the legacy ^primd facte imports a bounty and 
intention of kindness, absent in the case of intestacy ' (c) : it 
must be considered as a voluntary gift, unless there be 
* strong circumstances of a contrary intention.' (d) Hence, 
although the legacy be given so that it may be regarded as 
in substance a performance of the intention of the covenant, 
it is taken to be an additional bounty, unless the will raises 
the presumption that the testator gave it for the purpose of 
satisfying his obligation, — a presumption which is in general 
repelled by small variations between the bequest and the 
obligation. On the other hand, in cases of intestacy, there 
can be no intention of bounty ; and, therefore, the only 
question is, whether the meaning of the covenant is in sub- 
stance complied with." 

6. The case of Haynes v. Mico was cited with approbation 
by Alexander, L. C. B., in the case of Adams v. Lavender, (e) 
In that case the husband upon marriage entered into a bond 
to trustees to pay to them in his lifetime, or immediately 
after his death, 500Z., in trust, subject to their own costs, 
charges, and expenses, for his wife for life, and after her 
death for their issue, and, in default of issue, for his wife for 
her own use. By will, after directing ftQl payment of all 
his debts, he gave her 1000/., payable within six months after 
his decease. It was held that the bequest of the lOOOi. was 
not a satisfaction of the 500Z., secured by the bond. 

7. In this case, however, the presumption that the bequest 
was not made as a satis&ction was stronger than in Haynes 
V. Mico, as the testator here directed all his debts to be paid, 
without exception of that created by the bond, which showed 

(a) Ante, p. 172. (d) 2 Bro. C. C. 895. 

{b) See 4 Madd. 831. (e) M'Cleland & Tounge, 41. 

{c) 10 Ves. 17. 



BEQUEST FATABI.E KABLIEB, AND OF SAMS AMOUNT. 183 

that he did not intend the legacy to be a satisfaction of it. 
Moreover, as in Devese v. Pontet, there might have been other 
persons than the wife to a greater extent interested in the 
bond debt. 

8. But if the legacy be payable at an earlier period than 
the sum covenanted to be paid, and be of equal amount, it 
will be a satisfaction ; and the presumption that it was so 
intended will not be repelled by a direction in the will, that 
aU the testator's debts shall be paid, (a) 

9. If the property bequeathed to the widow, and the 
interest that she is intitled to under the covenant or obli- 
gation of her husband, be of different natures, or for different 
interests, as if the provision by covenant or agreement be 
money, and that by will be of lands, or the wife's estate 
under the former be absolute, and her interest under the 
latter be for life only; these circumstances will also be 
sufficient to repel the inference of satisfaction, (b) 

10. Thus, in Forsight v. Grant (c), the husband entered 
into a bond to pay 2000^. within three months after his 
death, to his intended wife for life, then for thdr children ; 
but if none, then for his wife absolutely. After this, he by 
will gave all his real and personal estates to trustees, upon 
trust to pay the rents and interest to his wife for life, and 
after that event to divide both real and personal estates 
among his children, &c. There were no children of the 
marriage. The question was, whether the widow was in- 
titled to the benefit of the bond, and also to the provision in 
the will ? And it was so decreed ; it having been admitted 
by her opponents, that unless she could be put to an election 
from some expression in the will, the bequest could not be 
considered a satis&ction, because under the bond she was 
intitled to a principal sum within three months after her 
husband's death, but that under his will she was only in- 

(a) Wathen v. Smith, 4 Madd. (b) 2 P. W. 614. 
325. (c) 1 Vee. Jun. 

N 4 



184 WHERE FBOYISIOKS NOT OF SAME NATUBE. 

titled to the rents and interest during her life, which were 
provisions of a different nature* 

11. Again, in Richardson i;. Elphinstone (a), the husband 
covenanted in marriage articles to pay to his wife, if she 
survived him, 200L free from all deductions, in the name of 
a jointure, and 50Z. to provide herself with a house, yearly 
during life, to conunence at Whitsunday or Martlemas, which 
should first' happen after his death. He by will directed 
his debts to be paid, and devised to his wife for life a house, 
with the goods, plate, &c. in it ; and h§ bequeathed his re- 
siduary personal estate to trustees, in trust to invest it in 
stock, and to permit his wife to receive half-yearly lOOL 
annually during her life. Whether these bequests were a 
satisfaction of the covenant, was the question. And Lord 
Alvanley, M. R., determined in the negative, and referred 
to three cases, Eastwood v. Vinke(J), Broughton v. Er- 
rington (c), and Haynes v. Mico. (d) His Honour observed : 
" After these cases (the three to which he referred), it would 
be presumption for any one sitting where I do to hold this a 
satisfaction ; and when it is considered how much more 
material it is that certainty should be pursued, than that 
conjectures should be formed of the intention, and how easy 
it would be to say it should be in satisfaction if the testator 
intended it; even were it res integra^ I should hold that 
where a man is under an obligation to do an act, and does it 
not, but performs something else that may by ingenuity be 
construed a satisfaction, it is safer to say, that it is not a 
satisfaction. The above three cases are nearly upon the 
same footing as the case of a bond debt due to a stranger. 
Here if the testator had the articles in contemplation, it is 
absurd to suppose he should give a real estate in satisfaction 

(a) 2 Ves. Jun. 463. (rf) 1 Bro. C. C. 129, stated suprct, 

{b) 2 P. W. 614, stated supra^ p. 181. 
vol. I. p. 494. 

(c) 7 Bro. ParL Ca. 461, 8vo ed., 
and stated suprcty vol. I. p. 493. 



BEQUEST HADE FOB PABTICULAB FUBPOSE. 185 

for half, and an annuity payable and commencing at different 
times for the other half (provisions so extremely different), 
without expressing it to be a satisfaction. This, therefore, 
is no satisfaction of the covenant." (a) 

12. Where the two provisions are ejicsdem generis j and 
commensurate in interest, yet if the provision by will be 
expressed to be given for a particular purpose, or from a 
particular motive, such purpose or motive will prevent the 
testamentary gift from being a satisfaction of the covenant 
or agreement (i), because the former was given diverse in- 
tuitu^ which repels the presumption of an intended satisfaction 
of the latter. 

13. If the benefit given to the widow by will consist of 
the whole or part of the husband's residuary personal estate, 
it has been decided that such bequest, although it may be 
eventually of as large or larger amount than the money 
covenanted or agreed to be paid to or for her by him, or his 
executors, shall not be a satisfaction of such covenant or 
agreement ; for non constat at the date of the will, whether 
at the testator's death, after all claims upon his property are 
satisfied, his estate, which is in continual fluctuation till that 
event happens, will be equally beneficial to the widow as the 
sum secured to her by the covenant or agreement. It has 
been therefore inferred from the nature of a residue, and 
the uncertainty of its amount, that the husband did not 
intend by such an indefinite bequest that it should operate 
as a satisfaction of a certain and definite duty, (c) 

14. This is the principle upon which Lord Kenyon pro- 
fessed to decide the case of Devese v. Pontet, as reported by 
Mr. Cox and Mr. Finch, (d) In that case the husband co- 
venanted in marriage articles that if his intended wife were 



(a) See also Alleyn v. AUeyn, 2 (c) 1 Yes. Sen. 620. 

Ves. Sen. 37 : Matthews r. Mat- (d) 1 Cox's Cases, 188, and Pre. 

thews, 2 Yes. Sen. 635 : and Grave Ch. 240, in a note : et vide 2 Yes. 

V. Lord Salisbury, 1 Bro. C. C. 425. Sen. 37, and 15 Yes. 513. 

(6) See the cases last referred to. 



186 WHETHER BEQUEST OF SHABE OB RESIDUE 

the survivor, and there should be no issue, his heirs, &c., 
should within nine months after his death pay to her 800^. 
for her own use ; but if there were any child or children of 
the marriage, then that the interest should be paid to her for 
life, and the principal after her death to or among such 
child or children, &c. Subsequently to this, the husband by 
will, after bequeathing several specific articles to his wife, 
directed that all the debts owing to the business which he 
then carried on should be collected with all possible des- 
patch ; that the household goods and stock in trade should 
be valued, and the money which should be in the public 
funds, and the produce of all being collected, the whole 
should be divided into two equal shares ; the one to be the 
property of his wife, the other of his brother. One question 
was, whether the bequests to the widow were a satisfaction 
of the testator's covenant ? And his Honour decided in the 
negative, concluding his judgment upon that part of the 
case thus ; " Upon the principle, therefore, of Lords Somers 
and Hardwicke, that the residue shall not be taken in 
satisfaction, I am of opinion that the covenant in the mar** 
riage articles is not satisfied by the provision of the will." 

16. The reader must be apprised that Lord Eldon ascribes 
the decision in this case to the covenant being entire, so that 
as the bequest of the residue could not be a satis&ction of 
the whole covenant, it should not be so of a part of it (a) ; 
yet it cannot avoid observation that Lord Kenyon expressed 
the foundation of his decree to be that a residuary bequest 
was not to be considered a satisfaction of the husband's 
covenant to pay to the legatee an ascertained sum ; and upon 
the principle before stated. 

16. In a subsequent case of Bengough v. Walker (6), Sir 
William Grant appears to have distinguished between a debt 
and a portion, and he intimated that a residuary bequest 
might probably be considered a satisfaction of the latter, if of 

(a) See Garthshore v. Chalie, 10 Yes. 15. {b) 15 Yes. 513. 



IS A SATISFACTION. 187 

larger or equal amount ; and he alluded to the decision of 
Lord Thurlow, in Rickman v. Morgan, (a) But Rickman u. 
Morgan, as Mr. Roper observe8(A), was not decided upon any 
general rule applying to the doctrine of satisfaction, but 
upon the proviso in the settlement, "that all subsequent 
advancements by the father should be deducted out of the 
portions, unless otherwise declared by him in T^Titing." The 
father afterwards bequeathed 4000Z. to his wife for life, and 
after her death to B, his third son ; and he gave to B (who 
was intitled to 8000/., the provision in the settlement), the 
residue of his personal estate, which amounted to more than 
the portion of 8000/. The determination was, that the 
bequest should go in satisfaction of B^s portion under the 
settlement. Mr. Roper further observes upon that case, 
" that the father had restrained himself to certain terms in 
regard to the disposition of his property amongst his children 
subsequently to the date of his marriage settlement, viz. that 
all future provisions which he should make for any of them 
should be deducted out of their portions provided by the set- 
tlement, without a written declaration by him to the contrary. 
The father, therefore, having bequeathed to his son the 
residue of his personal estate, without making any declaration 
in writing that it should go in satisfaction of his portion, the 
CJourt, upon the face of the settlement, could not avoid de- 
creeing that such residuary bequest should go in satisfaction 
of the son's portion under that instrument ; and in doing so. 
Lord Thurlow did not, nor did he intend to infringe upon 
any rule established upon the subject in prior cases." 

17. However, in the above case of Rickman v. Morgan, 
Lord Thurlow expressed a strong opinion of the absurdity 
of holding that a gift of the whole residue should not be 
a satisfaction when the gift of a legacy of smaller amount 
would be. 

(a) 1 Bro. C. C. 63, continued 2 (b) 2 Rop. H. & W. 60. 
Bra C. C. 394. 



188 WHEBE RESIDUE GIVEN TO TWO EQUALLY, 

18. In a late case (a), where a father on the marriage of 
his dau&^hter had erven a bond to secure the transfer of a sum 
of stocks, » portl for her, «.d M afterward, bequeaAed 
a moiety of the residue of his personal estate to her, it was 
held that if the moiety of the residue was found to exceed 
the value of the stock, and there was nothing inconsistent 
in the respective limitations of the stocks and residue, the 
gift of the residue was a satisfaction of the portion. Lord 
Langdale, M.R., remarked that it seemed to be settled that a 
gift of a residue, being of uncertain amount, should not, 
without more, be taken in satisfaction of a specific sum of 
money owing by the testator to an ordinary creditor. But 
that portions provided and secured by husbands for their 
wives were subject to other considerations. 

19. It seems, therefore, that at the present day a bequest 
of the whole or of part of a residue to the widow will be 
considered a satisfaction of her husband's covenant or obli- 
gation to pay to, or to leave to her, a certain portion of his 
personal estate, if it should prove that the bequest exceeds 
the value of the portion. 

20. Where, as in Devese v. Pontet (6), and Barret v. 
Beckford (c), a residue is given between two persons equally, 
different considerations may be applied : there appears to be 
an intention of equal bounty towards each, but if the share 
of one be taken in satisfaction of a prior debt, he derives less 
benefit from the bequest. 

21. When part of the residue is bequeathed in such a form 
as to afford no uncertainty in regard to the amount of the 
proportion of it intended to be given, there seems no doubt 
that it will be a satisfaction of the covenant. If, then, the 
husband's covenant be to leave, or that his executors shall 
pay to his widow 2000Z., and he devise to her so much of 
his residuary personal estate as shall be of the value of 
2000Z., since the amount of the legacy is as certain as the 

(a) Earl of Glengall v. Barnard, (&) Cited antcy p. 185. 
1 Keen, 769. (c) 1 Ves, Sen. 519. 



f 



WHEBE RESIDUE EXCEEDS COVEKAKT. 189 

sum secured by the covenant, it would seem that the bequest 
of the 2000/. would be a satisfaction of the covenant to pay 
to the legatee the sum of 2000/. (a) 

22. And probably it would make no difference if the 
value of the bequest appeared to exceed the sum stipulated 
to be left or paid, although it were made subject to a charge, 
for if the Court were able to perceive that after allowing for 
such charge there remained a surplus of the sum bequeathed 
greater than or equal to the husband's obligation or covenant, 
why in that case the bequest should not be considered a 
satisfaction of the covenant no solid reason appears. '^ If," 
said the Master of the Rolls, in Bengough v. Walker (6), " I 
see that the bequest is so large, so far exceeding the portion 
that the diminution of the burthen iipposed upon it cannot 
affect the relative proportion, it would be against common 
sense to say, that if a bequest of ten times the amount of 
the portion is burthened with a charge not to the extent of 
a tenth part, the remainder, though greatly exceeding the 
portion, shall not be a satisfaction." 

23. The presumption once raised upon the husband's 
wUl, that a devise was intended by him in satisfaction of his 
covenant, may, like other presumptions, be repelled by parol 
evidence (c) ; but it is conceived that such testimony is 
inadmissible to raise the presumption, by showing that he 
meant to satisfy his covenant, when no such intention 
appears, or can be legally inferred from his will, (d) 

(a) See 15 Yes. 514. 385. 397 : Garthshore v. Chalie, 

lb) 15 Ves. 515. 10 Ves. 10. 

(c) See Jeacock r. Falkener, 1 (d) Sowden v. Sowden, 1 Bro. 

Bro. C. C. 295: Pole v. Lord Somers, C. G, |583 : alao see suprd, voL I. 

6 Yes. 319 : Dnice v. Denisozii ibid. p. 442. 



190 husband's oovENAsrr to sbttlb 



CHAPTEB VIL 

1^; e^^^ i, Qjp jjjj. HUSBAND'S COVENANT TO SETTLE HIS WIFE'S AFTEIU 

tjST:^H, :uo. ACaUIRED PROPERTY. 



2. James v. DuranL 

3. Blythe y. CrranviUe. 

4. Hoare v. Homhy. 

5. GraffUy v. Humpc^ge. 



7. Property to wif^s separate use 

not ioithin covenant 

8. itiay ^ sybject to voifis eove* 

nant 



Iw^ /iy^^Mtc 1. The effect of the husband's covenant to settle the after- 
^"Ir^^^l^lZ fl'Cquired property of the wife has been the subject of some 
>t^0U #ya^(»e«A»«.Iate cases. 
^^cAca^lj^s- 2. In James V. Durant (a), the husband and wife cove- 
nanted to settle all property which the wife or the husband 
in her right should at any time or times thereafter become 
possessed of or intitled to. At the time of the settlement 
the wife was intitled to stock, and to some shares in the 
South London Waterworks. The stock only was settled, the 
husband contended that the covenant was to extend only to 
after-acquired property, and that the shares were therefore 
not subject to the covenant. But it was held that as by 
virtue of the marriage the husband acquired a title to the 
shares, they come precisely within the words, and were subject 
to the covenant. 

3. So, in Blythe v. Granville (6), where the husband 
covenanted to settle all the property to which the wife should 
during coverture become intitled, it was held that a sum of 
stock in which the wife had an interest in reversion at the 
time of the marriage was subject to the covenant, Sir L. 
Shadwell, V. C. E., saying the coverture was the futurity 

(a) 2 Beav. 177. (ft) 13 Sim. 190. 



wife's aftbb-acquibed fbofertt. 191 

referred to, and immediately on the marriage the wife became 
intitled to the property during the coverture. 

4. But in the case of Hoare v. Hornby (a), where there 
was an agreement in a settlement that ^^ all such further or 
other portion or personal estate, if any, as should, during the 
life of the wife, become vested in, or accrue to her, or as 
should or might be assignable by the husband and wife, or 
either of them, in law or equity, either for a vested or con- 
tingent interest," should be assigned upon the trusts of the 
settlement, it was held that the parties contemplated only 
what was to be assignable by them at a future time, and that 
certain property which was at the time vested in the wife 
was not subject to the trusts of the settlement. 

5. In Grafitey t;. Humpage (i), the husband covenanted 
to settle all property to which his intended wife, or he in her 
right, should at any time or times thereafter during the 
coverture succeed to the possession of, or acquire. At the 
time of the marriage a sum of money which was not men- 
tioned in the settlement stood settled in trust for the wife 
for life, with remainder to her children, with remainder as 
she should appoint ; and in default, to her executors, admin- 
istrators, and assigns. The husband having survived the 
wife, and there having been no children, and the wife having 
made no appointment, it was contended on behalf of his re- 
presentatives that nothing was acquired by the husband till 
the coverture was determined, and that the covenant fixing 
the period of coverture as the time during which the property 
to be settled should be acquired, the property in question was 
excluded. But it was held that as it was by the coverture 
only that the husband acquired the marital character which 
afterwards intitled him to administer and possess his ^wife's 
estate, the right existed during coverture, and the property 
was therefore subject to the covenant. 

6. But where it was agreed that whatever personal estate 

(a) 2 Y. & C. C. C. 121. {b) 1 Beav. 46. 



192 WHERE wife's SEPARATE FROFERTY WITHIN COVENANT 

should, after the solemnization of the marriage, accrue to the 
wife, or to the husband in her right, should be settled, the 
wife having survived the husband, the agreement was held 
to apply to such property only as the wife had become in- 
titled to during the coverture, (a) 
',^ (AyM^, 7. Where the husband alone has covenanted to settle pro- 

perty which his wife, or he in her right, may acquire, property 
to which the wife becomes intitled for her separate use is not 
subject to the covenant. (6) 

8. But where both the wife and husband separately cove- 
nanted to settle all real and personal estate (other than 
certain specified property) as the wife then was seised of, or 
intitled to, or as she, or her husband in her right, might 
during the intended coverture become seised of or intitled to, 
it was held that a reversionary interest in stock to which the 
wife was intitled at the time of the settlement for her separate 
use was subject to the covenant, (c) 

(a) Howell v. Howell, Howell v. Ex. 264 : Thornton v. Bright^ 6 Law 

James, 4 Law J. N. S. Chan. 242. J. N. S. Chan. 121. 

(ft) Travers v. Travers, 2 Beav. (c) Tawney v. Ward, 1 Beav. 

179 : Douglas v. Congreve, 1 Keen, 563. 
423 : Drury r. Scott, 4 Y. & C* Eq. 



LIMITATION TO WIFE's " NEXT OF KIN." 



193 



CHAPTER VIIL 

OF THE CONSTRUCTION OF LIMITATIONS TO THE "NEXT OF 
KIN," "PERSONAL REPRESENTATIVES," "EXECUTORS OR AD- 
MINISTRATORS," ETC., OF THE HUSBAND OR WIFE. 



1. Husband not iniitled under li- 

mitation to wife's " next of kin." 

2. Or to wi/e*s "next of kin or 

personal representatives/* 

3. fVife not intitled under limita- 

tion to husbands " next of kin." 

6. Or to his " next of kin accord- 

ing to statute of distribution." 

7. Husband not intitled under gift 

to wif^s " relations." 

8. Nor wife under gift to hus- 

bancTs *^ relations/' 
11. Wife may take under gift to 
" persons intitled under statute 
of distribution." 



(Effect of limitations to "re- 
presentatives" "legal personal 
representatives" " legal re- 
presentatives" or "personal 
representatives." 
19. Mr. Ropers remarks on Bailey 

V. Wright. 
20. 1 Effect of limitations to " execu" 

25. J tors or administrators." 

26. Effect of limitation to "family" 

of husband or wife. 
28. Husband not intitled under 
limitation to " right heirs of 
wife." 



1. It is settled that the husband has no claim to his wife's 
property under a limitation to her " next of kin," on the 
ground that such expressions are to be regulated by the 
statute of distribution (a), in which the word "kindred" 
means only persons related to the intestate by blood, which 
the husband is not. This point was so decided by Lord 
Rosslyn in Watt v. Watt, (b) 

2. The same construction was given by Sir W. Grant, 
M. R., in Bailey v. Wright (c), to a limitation to the wife's 
" next of kin, or personal representatives." 



(a) 22 & 23 Car. 2. c. 10. 

(b) 3 Yes. 244. But where the 
wife was iUegitimate, and died with- 
out issue, it was held that, as there 
were no next of kin, the fund re- 

VOL, n. 



suited to the wife, and went to her 
husband as her personal represen- 
tative, Hawkins v, Hawkins, 7 Sim. 
173. 
{€) 18 Ves, 49; 1 Wils. 15. 



194 WIFE^S " NEXT OF KIN OE FEBSONAL BEPEBSENTATIVES/' 

There, by the marriage settlement of Samuel Bailey and 
M. Orrell, a sum of 7001. (the wife's fortune) was settled in 
trust to place 500Z., part of that sum, at interest, and to pay 
such interest to M. Orrell for her separate use during the joint 
lives of her and her husband ; and if she survived him, the 
trustees were to pay to her the 500/, ; but if she died before 
him, then to pay it as she should have appointed ; and in 
the event of no appointment, in trust "for the next of kin or 
personal representatives of the said M. Orrell." The trusts 
declared of the 200?., remainder of the 700?., were to lend it 
at interest to the husband upon his bond during his life ; 
which interest he was to retain or be paid, and the capital 
was to be paid to his wife if she survived him, but if he were 
the survivor, then according to his wife's appointment ; and 
if she made none, then in trust " for the next of kin or per- 
sonal representatives of the said M. Orrell." No property of 
the husband was included in the settlement. The wife died 
without issue, and without having made any appointment, 
and her husband claimed the funds against her sister under 
the above ultimate limitations. But Sir William Grant 
decided against the husband's claim, upon the intention 
appearing on the settlement. His Honour said, " Had it been 
meant that the husband should take by surviving his wife, 
the expression was quite obvious, that, in that event, and in 
default of appointment, the whole of the two sums should 
be paid to the said S. Bailey for his own use ; that both hus- 
band and wife are mentioned by their names wherever they 
are spoken of in the settlement ; but that they had a view to 
uncertain persons who could be designated only by some 
general description ; that it seemed hardly conceivable that 
in a marriage settlement a limitation to the wife's * next of 
kin ' can be introduced except for the purpose of excluding 
the husband ; and that if the intention was to exclude him 
by the first words * next of kin,' he could not be let in 
under the subsequent words * personal representative ; ' that 
whatever the latter words might mean, standing by them- 



husband's " NEXT OF KIN," 19j 

selves, they could not, as used in this case, take from 
the first words the sense which they properly had, and 
were here obviously mtended to bear.*' The husband's bill 
was dismissed with costs. 

On appeal, the decree was confirmed by Lord Eldon (a), 
who remarked, that the nature of the trust of the 200/. bore 
most strongly on the construction, and that the husband 
could not correspond to the description of next of kin, or 
personal representative in the settlement, because the benefit 
which he claimed was one to arise after he had recovered all 
that was given to him as husband. 

3. As the wife does not answer the description of a 
person related to the husband by blood, she will be in 
like manner precluded from claiming under a limitation of 
property to her husband's " next of kin." 

4. Thus, in Nichols v. Savage (6), where the testator be- 
queathed his residuary personal estate in this manner ; "to 
all and every my next of kin that would have been intitled 
to my personal estate under the statute made for distribution 
of intestates' estates, in case I had died intestate : " the Court 
decided that the widow was not intitled to a share with the 
testator's next of kin. 

5. So, in Garrick v. Lord Camden (c), where the widow's 
claim depended upon the construction to be put on the 
following clause in her husband's will ; " and in case after 
the payment of all the said legacies, bequests, and expenses, 
there shall remain any surplus money or personal estate, I 
direct the same to be divided amongst my next of kin, as if 
I had died intestate," it was contended for the widow, that 
the Court ought to construe the words " amongst my next 
of kin, as if I had died intestate," as if the clause had stood 
thus : " to be divided as if I had died intestate," omitting 
the words "amongst my next of kin;" but Lord Eldon 



(a) 1 Swanst. 39. (c) 14 Ves. 376. 381. 386. 

(b) Cited 18 Ves. 53. 

o 2 



196 GIFTS TO "relations" OF HUSBAND OB WIFE 

observed, that the whole course of modem authority was 
against taking that as the first construction of the words ; 
and that, whatever might have fallen from judges, describing 
the husband as next of kin to his wife, the tenor and bent of 
modem decisions went to this extent, that if a husband 
bequeathed to his next of kin, that bequest did not primd 
facie include his wife, and that it was quite clear that if 
a married woman, under a power by settlement, bequeathed 
to her next of kin, it would be impossible to hold, that 
under the construction of such a will, without more, the 
husband would take as sole next of kin. The opinion of his 
lordship in the present case was thus expressed : " Upon 
the whole, I think the widow is not one of the next of kin 
in the ordinary sense, or in the sense in which the testator 
used the words." 

6. In Cholmondeley v. Ashburton (a), the ultimate trust 
in a marriage settlement was for such person or persons as 
would, at the decease of the husband, be intitled to his 
personal estates as his next of kin, according to the statutes 
for distribution of personal estate of persons dying intestate, 
if the husband had died intestate without having been 
married to his then intended wife. The husband survived 
his wife and married again. It was held that his widow 
was not intitled. Lord Langdale, M. R., observing, that if 
the words " next of kin " had been omitted, he should have 
had no doubt that the widow would be intitled ; but having 
been inserted, he must ^ve them full legal effect, and look for 
the persons whom the law designated by that expression. 
He found that the widow was not one of the next of kin. 

7. The word "relations" being equivalent to next of 
kin (6), the husband will not be intitled under a limitation 
to his -^vife's relations. 

{a) 6 Beav. 86: see also Eilner Mer. 689: Smith v, Campbell^ 19 

V, Leech, 7 Beav. 202 ; 16 Law J. Ves. 400 : Bishop v, Cappel^ 1 1 Jur. 

N. S. Chan. 503 ; 1 1 Jur. 859. 939. 

(b) See Pope v, Whitecombe, 3 



TO "persons INTITtED UNDER STAT. OF DISTRIBUTION." 197 

8. For the same reason, the wife will be excluded under a 
limitation to the relations of her husband. 

9. Thus, in Davies v. Baily (a), the husband bequeathed 
to trustees his residuary estate, to pay the interest of it to 
his wife for life (which raised a. strong inference of his 
intention that his widow was to take no other interest in 
that fund) ; and after her death he gave the capital " to 
such of his relations as would be intitled thereto by the laws 
in force, of distribution, to be divided as the said laws 
direct." Lord Hardwicke, after commenting upon the re- 
lation between husband and wife to the effect before stated, 
decreed, under all the circumstances of the case, that the 
widow was not intitled to any part, of the principal of the 
residuary estate. 

10. This case was followed by that of Worseley v. John- 
son (J), in which the husband, after devising his lands to his 
wife for life, remainder to A in tail, directed that in default 
or failure of issue of A, the lands should be sold, and the 
money divided "amongst his relations, according to the 
statute for distribution of intestates' estates where no will is 
made ; " and he then gave certain houses in F to his wife in 
fee. After the death of the wife, and the death and failure 
of issue of A, the wife's executor filed a bill for the sale 
of the lands, claiming a moiety of the proceeds under the 
statute of distribution ; but Lord Hardwicke, upon the same 
principles which governed his decision in Davies v. Baily, 
dismissed the bill. 

11. But the widow will take under a gift to the persons 
intitled under the statute of distribution. Thus, in Martin 
V. Glover (c), where the husband bequeathed his residuary 

(a) 1 Yes. Sen. 84. of copyholds and leaseholds in a will 

(b) 3 Aik. 758 : see also Maiiland was " unto or among the person or 
r. Addr, 3 Ves. 231. persons who at the time of the tes- 

(c) 8 Jur. 640 : see Jenkins v, tator's death would be intitled under 
Gower, 2 Coll C. C. 537; 10 Jur. the statutes for the distribution of the 
702. Whei» the ultimate Uitiitation estates of intestates, to his personal 

o 3 



198 



EFFECT OF LIMITATIONS TO 



estate " in trust for the person or persons who, under the 
statute for the distribution of intestates' effects, would be 
intitled to his personal estate in case he had not disposed of 
the same by will," it was held that this limitation meant the 
next of kin according to the statute at his decease, inclusive 
of his widow, and that they were intitled in the shares 
pointed out by the statute. 

12. The decisions upon the elBTect of limitations of personal 
estate to " representatives," " legal personal representatives," 
" legal representatives," or " personal representatives," have 
been by no means uniform, (a) It seems, however, now to 
be settled^ that under a limitation simply in such terms, the 
executor or administrator will take the fund, but as part 
of the estate of the person whose representative he is. (5) 

13. It seems, therefore, that under such a limitation to 
the wife's " personal representatives," or " legal personal re- 
presentatives," the husband, whether he administers or 
not (c), will be intitled, subject to his wife's debts. 

14. Upon the above construction of a limitation to " per- 
sonal representatives," in the late case of Smith v. Bar- 
neby(6?), the widow, who was sole residuary legatee and 
sole executrix, was held intitled, to the exclusion of the 
next of kin, under a limitation to the ^^ personal and not the 
real representatives " of her husband. And upon the same 
construction, where her husband has died intestate, she 
will be intitled to her distributive share. 

15. In Saberton v. Skeels(«), the words ^^ personal re- 
presentatives " were considered equivalent to executors and 



estate incase he should die intestate,** 
it was held that his widow and four 
children, took equally as tenants in 
common. Richardson v. Richardson, 
14 Sim. 626 ; 9 Jur. 322. 

(a) See 2 Jar. WiUs, 39. 

{b) Hollowajv. Clarkson9 2Hare, 
521 •, 16 Law J. N. S. Chan. 466 : 
Smith r. Barnebj, 10 Jur. 748 : Ar- 



buthnot V. Norton^ 10 Jur. 145: 
Booth V. Vicars, 1 Coll. N. C. 6 ; 13 
Law J. $r. S. Chan. 197 : Taylor v. 
Beverley, 13 Law J. N. S. Chan. 
240: Hinchclifie t. Westwood, 17 
Law J. N. S. Chan. 167. 

(c) "See suprct, voL L p. 41. 

(ji) Ubisup. 

{e) 1 Russ. at M. 587* 



" LEGAL PEBSONAL EEPRESENTATIVES/' &C. 199 

adnunistrators, and the substitution of these words vesting 
an absolute interest in the wife, the husband, as admini- 
strator of his wife, was held intitled to the property, 

16. In Robinson v. Smith (a), a fund was bequeathed to 
the husband^ his executors, &a, in trust for the separate use 
of the wife for life, and after her death to pay the trust 
monies to such persons as she should appoint by will, and 
in default, to her personal representatives. The wife having 
died in the husband's life, without having made any appoint- 
ment, it was held that the next of kin of the wife were 
intitled, on the ground that the testator intended to give to 
the husband, his executors and administrators, nothing but 
a trusteeship. • ' , wi r . //^^.^^ / ,. ,- ^ 

17. In Cotton v. Cotton (J), under a bequest to a legatee, ^ 
or Jm legal representatives^ it was held that legal representatives 
meant those persons who were by law intitled to claim bene- ' 
fidally the undisposed-of residue, and that they were not . 
the executors, or the next or nearest of kin, but the persons 
intitled beneficially under the statute of distributions, thus 
including the widow. 

18. In Wilson v. Pilkington (c), under an ultimate trust 
to divide trust monies among the '^ personal representatives ' 
of A in a legal course of administration," it was held that 
the next of kin of A living at his death were intitled, the ex- 
pression ^^ personal representatives " being considered to mean 
consanguinity. Sir J. L.K.Bruce, V. C, said that he wished 
it to be pcurticularly understood that although he mentioned 
the word " consanguinity,^' he did not mean to express any 
opinion whether the widow of A^ if there had been one at his 
death, would have had any claim on the fund. 

19. Mr. Roper, after citing the case of Bailey v. Wright (d), 
remarks : (e) " It occurs from the attentive consideration 

(«) 6 Sim. 47. (d) Cited ante, p. 193. 

(b) 2 Beav.67. (e) 1 Rop. H. & W. 329. 

(c) 16 Law J. N. S. Chan. 169 ; 
1 1 Jar. 537. 

o 4 



A *. r ' 



^ ^ 



J^ 



^ . . • ^ « 



*<■ -* « • ' 



*. 



I V^ • • ^ » ^ • 



200 MB. roper's observations. 

of the above judgment, that cases may happen where 
the husband may be included under a general disposi- 
tion by his wife to her * next of kin ' &c., although in a 
legal sense he does not strictly answer the description. 
Sir William Grant has said, as before appears, that imder 
these words in a marriage setdementj such an interpreta- 
tion could scarcely be made; the reason is, that from 
the inference dedudble from the circumstance of the hus- 
band being a party to it, the intention was that the hus- 
band should take no other interest in any event than 
what is expressly given or reserved to him by the deed. 
The same inference seems to arise and to be equally 
applicable, when by the settlement the ultimate limita- 
tion of the property is reserved or given to the wife's ^ legal 
personal representatives,' or to her * personal represen- 
tatives,* for by these terms the intention must have been 
that those persons only should have the property who could 
claim it in their own rights, viz. the wife's next of kin, which 
restricts the above expressions, as it has been observed, to 
kindred or relatives of her own blood and family, (a) But 
this construction or interpretation is not irrefragable; it 
may be repelled by the intention and eflFect of the whole 
instrument. Accordingly, Lord Eldon, in Garrick v. 
Camden {b)j a case upon a will, said ^ that it was competent, 
and required from the Court, to look through the whole will, 
and to see whether, from the wholes an intention was mani- 
fested to include the wife among those who were to be taken 
more strictly as next of kin, a description jpnm(3/aae excluding 
her ; ' and his Lordship observed, that upon the following 
words, * to be divided as if I had died intestate,' the words 
* next of kin' being omitted, might, upon the whole, admit, 

(a) See Lord Alvanley's reasoning Ves. 307: Horseman v. Abbey, 1 

in Bridge v. Abbott, 3 Bro. C. C. Jac. & Walk. 381 : Wellman v. 

224 : also Jennings v. Gallimore, 3 Bowring, 1 Sim. & Stu. 24 ; 2 Russ. 

Ves. 146 ; Long v. Blackall, 3 Ves. 374 ; 3 Sim. 323. 

146. 486 : Lord Cranley v. Hale, 14 (b) 14 Ves. 382. 



I 



LimTATIONS TO " EXECUTORS OR ADMINISTRATORS." 201 

or even authorise or require, such a construction as to let in the 
widow. If so, the same words used in the wife's will made 
under a power, or similar words in a bequest to her, must also 
intitle the husband to a share. But it is to be observed that in 
these cases the widow or husband do not take under the statute 
of distribution, but as personce designatce in the will under 
the intention there manifested: such intention sometimes 
enlarging the usual acceptation and effect of the words used, so 
as to let in those persons not strictly answering the description, 
with those who do so; and at other times restricting the 
legal import of the expressions, so as to exclude some of 
the persons who might otherwise have taken under them, as 
answering the description required by the statute." (a) 

20. Limitations to " executors or administrators" have 
been held in some cases to be equivalent to next of kin (6), 
but it is now settled that although the words " legal or 
personal representatives" may mean next of kin, the words 
executors or administrators cannot have that meaning ; but 
that, whether these words are construed as words of limi- 
tation or of purchase, the person who answers the description 
of executor or administrator takes in his representative 
character, and the fund is to be applied as any other assets 
that come to him in that character, (c) 

(a) Mr. Roper refers to Green- Bulmer v. Jay, 4 Sim. 48 ; 3 M. & 
wood V. Greenwood, 1 B. C. C. 32, K. 197. See also Graffley v. Hum- 
in notis : Wimble v. Pitcher, 12 page, 1 Beav. 52 : Allen v. Thorp, 7 
Ves. 433 : and Cotton v, Sharanck, Beav. 72 j 13 Law J. N. S. 5 : Hol- 
1 Mad. 45 : and his Treatise on loway v. Clarkson, 2 Hare, 524 : 
Legacies, where most of the cases are Attorney- General v. Malkin, 2 Ph. 
collected. 64 ; 16 Law J. N. S. Chan. 99 ; 10 Jur. 

{h) Palin V. Hills, 1 M. & K. 470. 955 : Smith v. Barneby, 2 CoU. 728 ; 

In the early case of Evans r. Charles, 16 Law J. N. S. Chan. 466 ; 10 Jur. 

1 Anst 128, which cannot now be 748; affirmed on appeal, 11 Jur. 619: 

considered as an authority, it was Arbuthnot v. Norton, 10 Jur. 145 : 

held that under such a limitation Price v. Strange, 6 Mad. 159 : Stocks 

the executors took for their own v, Dodsley, 1 Keen, 325 : Morris v, 

benefit. Howes, 4 Hare, 599 ; 16 Law J. N. 

. {c) Daniel v, Dudley, 1 Ph. 1, re- S. Chan. 121 ; 9 Jur. 966 ; 2 Eq. R. 

versing the decision of Sir L. Shad- 299 ; affirmed on appeal, 10 Jur. 

well, 11 Sim. 163, and overruling 955. 



202 GIFT TO " FAMILY " OF HUSBAND OB WIFE. 

21. The husband, therefore, under a limitation to his wife's 
executors or administrators, will, subject to the claims of her 
creditors, be intitled, to the exclusion of the next of kin. (a) 
, 22. And where the husband dies intestate, the wife will 
on the same grounds be intitled to her distributive share, 
under a limitation to her husband's executors or admini- 
strators. 

23. In Wallis v. Taylor (6), the husband was held abso- 
lutely intitled for his own benefit, under an ultimate limi« 
tation '^ to the wife's executors or administrators for their 
own use and benefit absolutely." 

24. But in Marshall v. Collett(c), a widow, who had 
taken out administration to her husband, was held not to 
be beneficially intitled, under a limitation in a marriage 
settlement to the executors or administrators of her husband, 
for their own use, these latter words being considered as 
surplusage. 

25. In Smith v. Dudley (d)^ the ultimate trust in a settle- 
ment of the wife's property was for " the executors or 
administrators of the wife of her own family;" and the 
ultimate trust of the husband's property was " for the exe- 
cutors or administrators of his own family," and it was held 
that the words in respect of the wife's property meant her 
next of kin at her death, and, with respect to the husband's 
property, his executors or administrators simply. 

26. The husband and wife are in general excluded from 
a limitation to each other's " family." (e) 

27. However, in M'Leroth v. Bacon (/), where there was 
a power to appoint for the benefit of a married woman and 
her family, it was held, upon the context, that the husband 

(a) Daniel v. Dudley, cited supra^ Bowring, 3 Sim. 328 ; 1 & & St 24 ; 
p. 201. 2 Bass. 374. 

(b) 8 Sim. 241. (e) See Brandon v. Brandon, 3 

(c) 1 Y. & C.Eq. Ex. 232 ; S. C Swanst. 321 : White v. Briggs, 15 
Merjon v. Collett, 8 Beay. 386; 9 Sim. 17 ; S. Con appeal, 17 Law J. 
Jur. 459. N.'S. Chan. 196. 

(d) 9 Sim. 125 : see Wellman v. (/) 5 Ves. 159. 



LIMITATION TO " BIGHT HEIBS " OF WIFE. 203 

was included in the word " family"; Sir R.P. Arden, M.R., 
admitting the general rule to be to exclude the husband. 

28. In Newenham v. Pittan (a), it was decided that the 
husband took no beneficial interest under an ulthnate limi- 
tation in a settlement to ^^ the right heir or heirs of the wife.'' 

(a) 7 Law J. N. S. 300. As to the ject of this chapter, see Jarman on 
limitations which have been the sub- Wills, chap. 29. 



204 



BOOK THE THIRD. 



OP THE WIFE'S SEPARATE ESTATE. 



CHAPTER I. 

HOW A TRUST FOR THE WIFE'S SEPARATE USE MAY BE 

CREATED. 



SECTION I. 



OF THE VALIDITY OF TRUSTS FOR THE WIFE'S SEPARATE USE. 



2. What property may he subject 

to trust for wi/e^s separate use. 

3. Tudor V. Samyne: term of 

years. 



4. Trust effectual during future co~ 

verture. 
7. Unless where trust confined to 

particular coverture. 



1. Although the common law does not permit the wife to 
take or enjoy real or personal estate separate from and in- 
dependant of her husband, this rule does not prevail in equity, 
where the capacity of the wife to enjoy property separate 
from her husband has been long acknowledged. 

2. Every kind of property, including estates in fee-simple (a) 
and chattels personal(6),may be subject to a trust for the wife's 
separate use, which will be supported in equity, 

3. The case of Tudor v. Samyne (c) has hem cited as an 
authority that a settlement of a term of years to the wife's 



(a) Baggett v. Meux, 1 Ph. 628. 

(b) Newlands v. Paynter, 4 M. & 
C. 408 ; 10 Sim. 378 ; 4 Jur. 282. 



(c) 2 Vera. 270. 



EFFECT OF TRUST DUEING FUTURE COVERTURE. 205 

separate use villnot be binding on the husband. But it appears 
that the term in that case was not settled to the wife's separate 
use (a), and the validity of such a settlement is now fully 
established. 

4. A trust for the wife's separate use is eflfectual against /<^-w>&, s «A/i 
the husband, although the wife may be unmarried at the ^^'^a-^- 
time of the creation of the trust, or being married at that 

period, may have become discovert, and afterwards married 
again. 

5. This point was decided at common law in the case of 
Beable v. Dodd (ft), and afterwards by Sir J. Leach, V. C, 
and also by Lord Eldon in the case of Anderson v. Ander- 
son (c) ; and it does not appear to have been doubted until 
some observations which fell from Lord Cottenham, then 
M.R., in the case of Massey v. Parker, (rf) 

6. But the validity of such trusts is now fully established 
by the authority of Tullet v. Armstrong, {e) 

7. Where, however, the trust for the wife's separate use is 
confined to a particular coverture, it will, of course, be ino- 
perative against a second husband. (/) 

8. In a late case {g\ where there was a gift to a woman 
then married " for her whole and sole use during her life, 
free from the control of any future husband," it was held 
that the gift was eficctual as well during the then existing, 
as a future coverture. 

(a) See suprcty voL I. p. 99. nycroft, 6 Sim. 420 : Newlands v. 

(b) 1 T. R 193 : see Horseman v. Paynter, 4 M. & C. 408 : Dixon v. 
Abbey, 1 Jae. & W. 381. Dixon, 1 Beav. 40. 

(c) 2 M. & K 427. (/) Bradley v. Hughes, 8 Sim. 
((0 2 M. & E. 174 : see also Ma- 149 : Knight v. Enight, 6 Sim. 121 : 

ber V. Hobbs, 2 Y. & C. £q. Ex. Benson v. Benson, 6 Sim. 126. 

317. (g) Steedman v, Poole, 6 Hare, 

(e) 4 M. & a 377 ; 1 Beav. 1 ; 193 ; 16 Law J. Chan. 348 ; 11 Jur. 

2 Jar. 913 : see-also Davies v, Thor- 449. 555. 



206 



WHAT WOEDS WILi; NOT CREATE A TRUST 



SECTION n. 

WHAT WORDS WILL NOT CREATE A TRUST FOR THE WIFE'S 

SEPARATE USE. 



1. Husband not excluded unless 

intent char, 

2. '^ Husband to have no part*' 

3. Annuity to he purchased in 

name of trustee to be paid to 
wtfe» 

4. Interest to be paid to wife 'for 

Ufe, and capital to such uses 
as she *^ whether sole or mar^ 
ried** should appoint 

5. To be paid to wife ^ to her, to 

and for her useP 



6. '^ Own use and benefU^ ^' own 

proper use and benefit^ " sdt 
eontroL" 

7. To be paid into wtfe^s ^* proper 

hands for her own use and 
benefit^ *^ Own absolute use 
andbenejkj* 

8. TobeappUedbywife^^formain'' 

tenanceqf herself andchildrenJ' 

9. ** Not to be charged or assigned** 
10. Trust for wife for Itfe, hus- 
band being one of trustees. 



1. It must be observed that Courts of Equity will not deprive 
the husband of his wife's property, to which he is by law 
intitled, unless the intention be clear that he is not to derive 
any benefit from it, and that it shall be for the personal 
use and disposition of his wife, (a) 

2. Thus, in Brown v. Clark (6), the testator bequeathed 
to his sister A (a married woman), and to B, the interest of 
his residuary estate, in equal shares ; upon A's death, half 
of the principal was to be divided amongst her children, of 
which the husband was to have no part, but it was to be 
entirely for the children ; and if she had none alive, then the 
sum was to be equally divided amongst B's children ; and 
after the deaths of B and wife, the other half of the principal 
was to go in like manner amongst his children. It was con- 
tended on the part of A, that as it was expressed that the 



(a) See suprit, voL I. p. 137, etseg.i 
also Rich v. Cockell. 9 Ves. 370, 
377. 



(b) 3 Ves. 166. 



FOR wife's separate USB. 207 

husband should have no part whatever, the bequest to the 
wife was a trust few her separate use ; but Lord Alvanley 
was of opinion that those words were only applicable to the 
principal money, of which the wife had no share, and not to 
the interest, to a moiety of which she was intitled for life : the 
interest therefore being given to her without qualification or 
restriction, it was subject to the right of her husband. 

3, So, also, in Dakins v. Beresford (a), B devised property 
to C, in trust to sell, and out of the produce " to purchase, 
in his own name, an annuity of 80/., for the life of the wife 
of D, and to pay the same to her and her assigns." D, 
although living apart from his wife, claimed the annuity; 
which demand was resisted, upon the ground that it was the 
intention of the testator that the wife should enjoy the an- 
nuity to her separate use, manifested in the direction to C, 
to purchase it in his own name, in trust for the wife of D ; 
but the Master of the Rolls declared, that as there were no 
negative words in the will to exclude the husband, he could 
not deprive him of his legal right to the annuity. 

It is observable in this case, that the bequest amounted to 
no more than to a trust to pay an annuity to the wife for 
life. Such a bequest, therefore, did not afford that clear in* 
tention to exclude the husband from his marital right, as a 
Court of Equity requires for that purpose ; the mere inter- 
position of a trustee never having been held sufiicient to 
manifest any such intent. 

4. Again, in Lumb v, Milnes (6), A bequeathed his re- 
siduary personal estate to trustees, in trust to pay half- 
yearly, a part, or the whole of the interest, upon a certain 
event, to his niece B (the wife of C) for life, and to apply 
the capital to such uses, &c. as B, whether sole or married, 
should appoint, as therein mentioned; and in case of no 
appointment, then to the use of B's legal representatives, in- 
cluding C, if then living. The question was, whether, under 

(a) 1 Cha. Ca. 194 : see also Stan- {b) 5 Ves. 517. 
ton V. Hall, 2 Buss. & M. 175. 



208 WHAT WORDS WILL NOT CREATE A TRUST 

the above bequest, B was intitled to receive the interest 
of A's residuary estate separate from and independently of 
her husband, or whether his assignees (he having become 
a bankrupt) were intitled to it during her life. And Lord 
Alvanley was of opinion, that tlie words of the will were 
not sufficient to give the annuity to B's separate use^ and 
that therefore the assignees were intitled to it upon making 
a provision for her. This case appears to be the same in 
principle with that of Brown v. Clark, for there is no qualifi- 
cation nor restriction whatever in the direction as to the 
payment of the interest to the wife. 

5. In the case of Jacobs v. Amyatt (a), the testatrix 
bequeathed the residue of her estate to or in favour of B, 
then a minor, and unmarried, to be placed at interest until 
she attained the age of twenty-one, or married ; in either of 
which events she was to receive the capital, with the ac- 
cumulations that were directed to be paid to her, to and for 
her use during her life, with limitations over. She married 
under age, and claimed the property as bequeathed to her 
separate use; but the Master of the Rolls, by whom the 
cause was first heard, decided against her claim in favour of 
the husband's marital right ; and his Honour's decree was 
afterwards confirmed by the Chancellor upon appeal. 

6. Legacies to married women for their " own use and 
benefit " have been held not to be separate property (6), as 
also have gifts to the wife's " absolute use" (c), to her " own 
proper use and benefit" (c?), "to be under her sole control." (e) 

7. The same construction has been given to the words to 
be paid " into her own proper hands, to and for her own 

(a) Stated in a note to Beresford (c) Ex parte Abbott, 1 Deaci 
V. Hobson, 1 Mad. 376. 338. 

(b) Johnes v. Lockhart, cited 3 (d) Blacklow v. Lawes, 2 Hare, 
B. C. C. 883, Belt's ed. : Wills r. 49, where the authorities were con- 
Sayers, 4 Madd. 409 : Roberts v. sidered by V. C. Wigram. 

Spicer, 5 Madd. 491 : Beales v. (e) Massej v. Parker, 2 M. & K. 
Spencer, 2 Y. & C. C. C 651 : Ken- 174. 
sington v. Dolland, 2 M. & K. 1 84. 



FOR WIFB'S separate USB. 209 

use and benefit." (a) And it seems that a bequest to a 
woman or her assigns during her life '^ for her and their 
own absolute use and benefit/' is not a gift to her separate 
use. (b) 

8. In Wardle v. Claxton (c), where a testator bequeathed 
his residuary estate to trustees in trust to pay the income to 
his wife for her life, to be by her applied for the msdntenance 
of herself and such children as he might leave at his death, it 
was held not to be a gift to the wife's separate use. 

9. In the late case of Gilchrist v. Cator (d)^ where a testator 
gave an annuity to an unmarried niece, to a married niece, 
and to a nephew, and declared, that as to the annuity to the 
unmarried niece and the nephew, they should not charge or 
assign, and if they did so, the annuity should go to his 
residuary legatee; and as to the annuity to the married 
niece, it should be for her separate use, independent of any 
husband, it was held that the annuity to the unmarried 
niece was not given to her separate use. 

10. Where a testator gave a moiety of the residue of his 
estate to the husband and another person, as trustees, in 
trust for the wife for her life, the circumstance of the 
husband being named as one of the trustees was held not to 
be a sufficient ground for inferring that the testator intended 
that she should take the life interest in the trust fund to her 
separate use : it was not necessary to determine what might 
be the inference if her husband was named as the sole trustee 
of a fund given to the wife for life, (e) 

(a) Tyler v. Lake, 4 Sim. 144 ; (^ H Jur.448. 

S. C. 2 Bufls. & M. 183. (e) Ex parte Beilbj, 1 Gljn & J. 

(b) Bjcroft V. Christie, 3 Beav. 167: Kensington v, DoUond, 2 M. & 
241. K 184. 

(c) 9 Sim. 524 ; 8 Jar. 145. 



VOL. II. 



210 



WHAT WORDS WILL CBBATE A TRUST 



SECTION IIL 

WHAT WORDS WILL CREATE A TRUST FOR THE WIPE'S 

SEPARATE U9E. 



1. ^* Sole and separate use/* ^sole 



user 
2. " Own use ^.," *^free from 
power ofhushandr 

4. Any words sufficient where t»- 

tent appears, 

5. " To enjoy and receive/* 

6. For the "" livelihood " of the 

wife. 

7. " Wif^s receipt to be a suffi- 

cient discharge*** 



8. '^ To be paid into her proper 

hands." 

9. Securities to be given to her ** on 

demand/* 

10. For unfe's *^ support and main- 

tenance/* 

11. Legacy *' in addition " to former 

gift to separate use* 

12. Wife absolutely intiiUd to ca* 

piUd where dividends to be 
paid to separate use. 



1. The following words have been held to create a trust for 
the wife's separate use : " sole and separate use " (a), " sole 
use, baiefit, and disposition.'^ {b) 

2. So have the words " for her own use, and at her own 
disposal" (c), " own sole use " {d)^ " sole use and benefit" (^), 
" free from the power of her husband." (/) 

8. And where there was a bequest of a fund to a married 
and unmarried woman, " to be equally divided between them, 
share and share alike, for their own use and benefit, indepen* 
dent of any other person," it has been held to be a ^ft for 
their separate use. {g) 



(a) Parker v. Brooke, 9 Ves. 583. 

\b) Ex parte Baj, I Madd. 199. 

{c) Prichard v. Ames, 1 Turn. & 
Buss. 222: see also Liglefield v. 
Coghlan, 2 ColL 247. 

{d) Ex parte Elllick, 3 Mont. D. 
& D. 480 ; 13 Law J. N. S. Bank. 
6 ; 8 Jur. 67. As to the meaning of 



the word ^' sole " when applied to a 
married woman, see Berchtoldt v. 
M. Hertford, 8 Jur. 50. 

(e) — — r. Lyne, Younge Eq. Ex. 
562. 

(/) ^gl« ^- Corthom, 9 Jur. 325. 
(g) Margetts v. Barringer, 7 Sim. 
482, 



I^B THE WHTE^S SBFARATE USE. 211 

4. Indeed^ no particukr f onn of ?70ids is necessary to mse a 
trust for the separate use. (a) Whenever it appears^ either 
from the nature of the transaction, as in the instance of a 
settlement in the contemplation of marriage, where the 
hushand ia a i^arty, or from the whole context of the in- 
strument limiting to the wife the property, that she was in^ 
tended to have it to her sole use, that intention wiU be 
carried into effect by a Court of Equity. 

5. Thus, in Tyrrell v. Hope (5), (the case of a settlement 
before marriage), when the deed was read over to the wife, 
and before its execution she observed that there was a 
mistake^ for that the moiety of certain premises limited to 
her mother for life, was after her death limited to the 
husband for life, and not to her own separate use, as had 
been agreed upon ; she therefore having refused to execute 
tiie settlement unless the mistake was rectified, the husband 
signed a note, by which he agreed with his intended wife, 
that ^' she should enjoy and receive the issue and profits of a 
moiety of the estate then in the possession of her mother, 
after the mother's death.'' This note was satisfactory, and 
then the wife executed the settlement. The husband having 
become a bankrupt, the Master of the Rolls decided against 
the claims of the husband's assignees to his property, holding 
that it was a trust in the husband to the wife's separate use. 
His Honour observed, that the words in the note could admit 
of no other construction than that the property should be for 
the wife's separate use ; and asked, to what end she should 
receive the profits, if they were to be the husband's property 
the next moment. He added, that the word " enjoy " was very 
strong to imply a separate use to the wife. 

6. So also in Darley v. Darley (c). Lord Hardwicke is 
reported to have said that technical words were not neces- 
sary to create a separate trust for the wife, and that the word 
"livelihood" was sufficient to show the intention of the 

(a) Stanton v. Hall, 2 Buss. & (b) 2 Atk. 558. 
M. 180. (c) 3 Atk. 399. 

p 2 



212 WHAT WORDS WILL CREATE A TRUST 

donor that the property should be to her sole and separate 
use. According to this opinion, if a devise were made to the 
husband, or a trustee for the wife's livelihood, the property 
would not belong to the husband, but to his wife as a feme sole, 

7. Again, in Lee «. Prieaux (a), the testatrix bequeathed 
to Ann Hill, widow, for life, an annuity of 10?., out of certain 
stock which she vested in a trustee ; and she directed the 
surplus dividends to be paid to Sophia Lee, a married woman ; 
she also ordered the whole dividends to be paid to Sophia 
after the annuitant's death, during Sophia's life: and she 
declared that her trustee " should not be troubled to see to 
the application of any sum or sums paid to the said Ann Hill 
and Sophia Lee, but that their receipts in writing should be 
sufficient discharges to her said trustee," &c. Lord Alvanley 
was of opinion, that although the words " notwithstanding 
the coverture of Sophia Lee " were omitted, and no notice of 
her then marriage was taken, yet that the other expressions 
in the clause were sufficient to intitle the wife to the dividends 
as her separate property. His Honour observed, that two 
women were the objects of the testatrix's bounty ; the one a 
widow, and the other a married woman. With respect to the 
former, the testatrix might have used these words as a caution 
against any fature husband having a right to the money ; they 
must have their meaning, and that probably the testatrix 
might have inserted the words, " her receipt shall be a suffi- 
cient discharge," in consideration of Sophia being a married 
woman, who was in that situation which otherwise prevented 
her giving such an acquittance ; and that if these words had 
no meaning, the testatrix might as well have omitted them. 
His Honour was therefore of opinion, that there was a clear 
intent to be collected from the words of the clause, that the 
testatrix meant that Sophia, though a married woman, should 
have the power to give a discharge, so as to bar her husband. 

8. In Hartley v. Hurle (6), the testator gave the annual 

(a) 3 Bro. C. C. 382. (b) 5 Yea. Jun. 540. 



FOB THE wife's SEPARATE USB* 213 

produce of the trust fund created by his will, subject to 
debts, legacies, and annuities, &c., in trust for his daughter 
Ann Hurle, as therein mentioned, to be paid by his trustees 
into her proper hands ; and Lord Alvanley said, he conceived 
that this was to her sole and separate use. (a) 

9. So, in Dixon v. Ohnius (6), the bequest was of a bond 
and mortgage debts to the testator's niece B, a married 
woman, with a direction that they should be delivered up to 
her whenever she should demand or require the same. The 
question was, whether these securities were to be considered 
as given to B for her separate use. And the Chancellor 
said, that as these securities were to be given up to B on 
her demand, her husband could not have obtained them from 
the executors without a demand made by B, which gave her 
the dominion over them ; they must therefore be considered 
as given to her separate use. 

10. In Cope v. Cope (c), where a legacy had been 
^ven to trustees for the support and maintenance of 
the wife of A, and for the support and education of his 
children, and there were no children of A at the testator's 
death, it was held that the wife took the legacy absolutely 
for her separate use. 

11. In a late case (d), where a legacy having been given 
to the wife for her separate use, a further annuity 
was by a codicil given to her ^^in addition," it was held 
that it was also given to her separate use. 

12. It may be here observed that a gift of stock to 
trustees in trust to pay the dividends to a married woman 
for her separate use, not limited to her life or any other 
period, gives her an absolute right to the capital, (e) 

(a) See 18 Yes. Jiin.4d4. 487: Adamfion v. Armitage, Coop. 

(b) 2 Cox's Rep. 414. 283 ; 19 Yes. 416. As to the cour 

(c) 2 Y. & C. Eq. Ex. 543. struction of gifts to the wife << to be 

(d) Day V. Croft, 4 Beav. 561: settled upon her^" see Young v.Mac- 
and see Yesej v. Yesey, 12 Jur. ^48. intosh, 13 Sim. 445 ; 7 Jur. SS2 : 

(e) Elton V. Shepherd, 1 B. C. C. Laing v. Laing, 10 Sim. 315. 
532: Haig v. Swiney, 1 S. k St. 

p 3 



L 



214 



WHEBB NO TBUOTEE, HUSBAND WILL BE 



SECTION IV. 

OF TRUSTS FOR THE WIFE'S SEPARATE USE, WHERE TRUSTEES 

HAVE NOT BEEN INTERPOSED. 



1. Where no trueiee, husband 
trustee for wife. 

4. Trustees for person under whom 

wife claunedkeld to be trustees 
for her. 

5. Husband iiforiioTi trustee where 

property vested in him for 
wift^s separate use* 

6. Wif^s equity enforced against 

purchaser from husband with 
notice of trust. 



7. Effect <^ husbasuTs agreement 

before marriage that wife shall 
have property for s^arate 
use^ 

8. To what proper^ such agree* 

meni as to wif^s property in 
general terms applies. 

9. Where devise in trust far wU!^ 

separate uscy legal estate will 
remain in trustee, 
10. Seeus, where limitation in deed. 



1. The interpositioQ of trustees seems to liave been at first 
considered necessary in order to protect the wife's separate 
interest (a) ; but it has been established ever since the year 
1725, that if land or personalty be devised or settled to 
or upon a married woman for her separate use, without the 
precaution of vesting it in trustees, still, in equity, the 
intention will be effectuated, and the wife's interests pro- 
tected by the conversion of her husband into a trustee for 
her. 

2. Thus, in Bennet v. Davis (6), A devised his real estates 
to his daughter B, the wife of C, in fee for her separate use, 
exclusively of her husband ; and he declared that C should 
not be tenant by the curtesy, nor have the lands for hia 
life if he survived B ; but that on B's death they should 
descend to B's heirs. The defendant Davis was assignee 
under a commission of bankruptcy which had issued against 

(a) Harvey v. Harvej, 1 P. W. (b) 2 P. W. 316 : Douglas v, Con- 
125 : Burton v. Pierpomt, 2 P. W. greve, 1 Beav. 72. 
79. 



TBUSTBE FOB WIFE. 215 

C ; and apon the wife's bill to compel an assigimient of the 
lands to her separate use, it was resisted by Davis, upon 
the ground that the estate not haying been conveyed to 
trustees for the wife's separate use, the husband's legal right 
to the profits attached, notwithstanding the contrary in* 
tention apparent upon the will, and that therefore he, Davis, 
as the husband's assignee, was intitled to them; but the 
Master of the Bolls decreed in fis^vour of the wife, declaring 
that the husband took as a trustee for her, and that there 
was no difference where the trust was created by the act of 
the party, and where by the act of the law ; also that the 
assignee, daiming "under the husband, took the property, 
subject to the same trust. 

3. So, in Parker v. Brooke (a), the testator bequeatihyed 
to the separate use of his daughter (a married woman) for 
life, remainder to her children, leasehold estates after the 
death of her mother ; and although no trustees were inter* 
posed, the husband was considered a trustee for his wife. 
And in Rich v. Cockell (i), Lord Eldon said, that it was 
perfectly settled that a husband might in a Court o£ Equity 
be a trustee for the separate use <^ his wife. 

4. A Court of Law has even extended its protecti<Hi to 
the wife against the husband, when no trustees were ap- 
pointed in the deed by which her title to separate property 
was created, holding that persons named hi a wiU as trustees 
tor the person ftom whom she claimed, were also to be 
considered trustees for her. 

Thus, in Davidson v. Atkinson (c), the testator devised 
some lands in which collieries had since been discovered, to 
three persons, in trust to sell for the benefit of others, 
of whom B (afterwards the wife of A) was one ; and until 
sale, the trustees were to receive the rents, and to pay a 
part of them to B, for her sole and separate use. The lands 

(a) 9 Yes. 683 : see also New- (b) Ibid. 375. 
lands V. Pajnter, 4 M. & C. 408 ; 10 (c) 5 Term Bep. 434. 
Sim. 378 ; 4 Jur. 282. 

p 4 



216 GIFT TO HtrSBAND IN TBU8T FOB WIFB. 

were not sold, and tke trustees let the collieries* Before B's 
marriage, she conveyed one-eighth part of the profits of the 
collieries to C, the plaintiff's wife (not to a trustee for her\ to 
her sole and separate use. The trustees in the will having 
no notice of the conveyance to C, paid to B her share of 
the rent under the will. C's husband brought an action of 
assumpsit against the husband of B, to recover one-eighth 
part of the rent, upon the ground that, as no trustee was ap- 
pointed for the plaintiffs wife in the conveyance made to 
her, it was in law a conveyance to the husband, who alone 
had a right to sue for the money ; but the Court held that 
the trustees under the will, in whom the legal estate was 
vested, were to be considered as trustees for G, the plaintiff's 
wife, and that the husband was not intitled to recover in the 
action; Lord Kenyon observing, that the interests of the 
plaintiff and his wife were, in direct opposition to each 
other, and that if the Court permitted him to recover the 
money which was intended for her separate use, her separate 
right would be destroyed, 

5. The above are cases where the property was given by 
strangers to the wife's separate use ; but the principle equally 
applies, and even more strongly, when the estate is given to 
the husband for her separate use. (a) In these instances he 
will be a trustee for his wife of such property, and the wife's 
equity to it wiU be enforced against assignees in bankruptcy, 
and under the insolvent debtors acts, and against trustees 
under a conveyance from the husband to pay debts, (i) 

6. In the case of Parker v. Brooke (c), the wife's equity 
was enforced against a purchaser from her husband with 
notice of the trust. In that case, the husband in the 
year 1791 mortgaged leasehold estates which had been be- 
queathed to his wife's separate use for life, remainder to 

(a) 3 Atk. 399 ; 9 Yes. 369. Newlancb v. Pajnter, 4 M. & C. 

{b) See the cases of ex parte 408 ; 10 Sim. 378 ; 4 Jur. 282. 
Wells^ 2 Mont. D. & D. 504 : and (c) 9 Yes. 583. 



AGBEEHENT FOB SETTLEMENT TO WIFE's SEPARATE USE. 217 

her childreiiy without the intervention of a trustee ; and he 
obtained reversionary leases of the premises for ninety-nine 
years, determinable on a life. He also in 1792 madeanothei^ 
mortgage of all the premises, which securities it was in 1794 
agreed should be assigned to the defendant Brooke, but which 
agreement was not carried into effect. In 1800 Brooke ob- 
tained possession of the lands, in an ejectment brought by 
him against the husband, upon the latter's confession of the 
action. The husband then died, and after that event the 
wife and her child filed a bill against Brooke and the mort* 
gagees, charging them with notice of the will, and that Brooke 
obtained possession of the premises in collusion with the 
husband, &c. ; and they prayed an assignment of the original 
terms to trustees for them, upon the trusts for the will, can* 
cellation of the mortgages, delivery up of the reversionary 
leases, possession of the premises, and an account of profits 
on payment of the fines. Brooke insisted upon his agree- 
ment, as being for a valuable consideration. The mortgagees 
stated (in answer to a charge in the bill), that the mortgage 
monies were paid when the securities were obtained. It was 
in evidence that the reversionary leases were beneficial, and 
were granted to the husband upon his representations that 
he was intitled to the privilege of those reversionary leases 
under the will of the former tenant. Sir William Grant, M. B« 
decided that there was no distinction between the mortgage 
of the original and of the reversionaiy leases, that the trust in 
both cases referred to the same circumstances, and that there 
was equally notice in both. His Honour observed, that the 
whole originated in mistake of the law, and the effect of the 
omission of trustees; that there was complete notice, for 
those who drew the deed introduced the history of the trans- 
action, as laying the foundation for the husband's right to 
the renewed lease. The decree was in favour of the wife and 
child, and an account directed, in conformity with the prayer 
of the bill. 
7. So, where the husband, before marriage, agrees by writing 



218 



AGBBBMENT HOW CONSTRUED* 



that his wife shall be intitled to specific parts of real or 
personal estate for her separate use, but, in consequence of the 
property not having been so actually settled, the legal title to 
it becomes vested in him by the subsequent marriage, in all 
such cases the husband will be a trustee of the funds for her 
separate use. (a) 

8. If the agreemtmt merely gives to the wife disposing 
power over her property in general terms, it will be construed 
to apply only to what she has at the time, and not to subse- 
quent aoquisitions. {b) 



(c) If the agreement k not in 
wrilang, the non-rediicti<m of it into 
writing must he owing to the frau- 
dulent conduct of the hushand, other- 
wlfle the statste of frauds will inter- 
pose between the wile's equily and 
the liability of the husband to per- 
form his promise. See atUe^ p. 113, 
where this subject is diseussed* 
Where^ howeyer, a settlement is ac* 
tuaUy made before marriage, and it 
appeared to have been intended to 
aeeure the wHeTs ppoperty Hor her 
separate use^ but the deed as framed 
is defective in that particular^ a 
court of equity will rectify the 
mistake ftnim the internal evidence 
in the instmment See ante^ p. 
150. And where a plain mistake 
has been made in preparing the 
inBtrameat, paml evidence is ad- 
miflsiUev thoi^ caoeived with great 
caution. See the JOBgea collected in 
1 Sug. v. Sb p. p. 258, loth ed., et 
9B§* : BanSlowv. KBvington, 6 Yea. 
59^1 £eanmont «. JBramley, I Tucbl 
h Buss. 41 : Ball v. Storie, I 8. h 
W. MO: Pearce v. Verbeke, 2 
BfiBV. ^SI6 : Hiaiflbidge «. Wbgan, 5 
Har^, 2584 IS Law J. SL & Chan. 
281 ; 10 Jur. 703 : Duke of Bed- 
ford V. M. of Abercom, Breadalbane 
V. CamaioB, 2 M. & C. Til. How- 



ever, if an e r r or be disooveredin the 
deed prior to its execntiony and a 
party to it refiise for that reason to 
sign it until a memorandum in 
wridngy corrective of the mistake^ 
be prepared and signed bj a vntj 
or parties to the settlement, in thiA 
case the deed will be altered or con- 
trolled by Hie eubeequent instru- 
ment, in that partieular, as it was 
admitted in TTrrell v. Hope, 2 Atk« 
558--560, stated m^, p. 211 ; be- 
came ootn mstrum^its wero executeil 
at the same time, and are to be 
considered and construed as one 
deed. When a settlement is made 
after uaniage, in pursuance of ar* 
tieles entered into be&re its oele* 
bration, and the deed is required for 
the above reason to be rectified, a 
oonrt of equity wiU not comply with 
the naquest wttfaout « paN>duetioii of 
such articles, or other competent 
evidence of their contents, if the 
ori^al be lost, Coidwell v. HacfcriW, 
AaabL^17. Wh«t will and will not 
be A good settlement by the husband 
to the separate use of his wife, against 
Ids creditors, or a purehaaer, Hie 
xaadar idH find treated 4^f in the 
preceding book. 

(b) Pilkington t^. Cufhbertson, I 
Bro. P. C. 837. 



LEGAL ESTATE WHERE TESTED IK TBUSTEB. 219 

9. Where there is a devise to trustees for the wife^s 
separate use in terms which would execute the use in the 
wife, the Courts will hold the legal estate to be vested in the 
trustees, in order to effectuate the testator's intention by ex- 
cluding the control of the husband, (a) 

10. But a deed will not be thus construed, (b) 

(a) Neville v. Saunders, 1 Vern. {b) Williams v. Waters, 13 Mees. 
415 : Jones v. Ld. Say^ Seal, 1 Eq. ft WeL 166. 
Ab. 383 : Harton v. Harton, 7 T.B. 
6S2i Hawkinsr. Lnsoomb^ 2 Swanst. 
391. 



220 



MAT DISPOSE OF FBBSONAL ESTATE 



CHAPTER IL 

OF THE WIFE'S POWER OF DISPOSITION OVER HER SEPARATE 

ESTATE. 



L May dispose of personal estate 

as feme sole* 
3. Fettiplace v. Gorges* 
5. Although reversionary. 

7. Whisder v. Newman. 

8. Mr. Roper* s remarhs thereon. 

9. Maydisposeas feme sole of rents 

and profits of real estate. 
10. But not of estate in fee where 

no power to appoint, 
1 1 • JFill of such estate void* 
12. May dispose of savings of se^ 

parate estate. 



14. Cannot devise produce of se^ 

parate estate if invested in 
land. 

15. Wearing apparel bought with 

produce of separate estate. 

16. Arrears of separate estate due 

at time of second marriage. 

17. Wif^s grants out of or tnctim- 

hrances on, separate estate 
vaUd. 

20. Mores v. Hmsh. 

21. Mr. Roper's observations there- 

on. 



1. With respect to personal estate, it has been settled since 
the case of Fettiplace v. Gorges (a), that when personal 
property is actually given or settled, or is agreed to be given 
or settled, to the separate use of a married woman, she may 
dispose of it as a feme sole to the fuU extent of her interest. 
2. In Peacock v. Monk (J), Lord Hardwicke said, " that 
where there is an agreement between husband and wife 
before marriage, that she shall have to her separate use 
either the whole or particular parts of her personal property, 
she may dispose of it by acts in her lifetime or by her wilL" 
But this observation applied to marriage contracts only 
to which the husband was a party; the general principle 
applicable to all cases was that upon which the decision of 



(a) 1 Ves. Jun. 46 ; 3 Bro. C. C. 8. 



(b) 2 Ves. Sen. 191. 



AS FEME SOLE. 221 

Fettiplace v. Gorges was founded, namely, that when once 
the wife is pennitted to take personal property to her 
separate use as a feme sole, she must so take it with all its 
privileges and incidents, one of which is the jus disponendi. 

3. Fettiplace v. Gorges was to the following effect. The 
husband being embarrassed and obliged to go abroad, con- 
veyed all his estates in trust to pay his debts, and an aimuily 
of 200/. to the separate use of his wife, and not to be subject 
to his debts or control. She was also intitled to lOOOZ. stock 
under the wiU of A, bequeathed in trust for her sole and sepa^ 
rate use. After the wife's death, a writing signed by her was 
found, by which she left all her personal estate and every 
thing belonging to her to B. The husband, being the sur- 
vivor, claimed two sums of lOOOZ. and 1900/. stock, which 
were found at her death in the names of trustees for her sol^ 
and separate use. But Lord Thurlow dismissed the bill 
upon the principle before stated. 

4. That case was followed by Rich v. Cockell. (a) There 
500Z., three per cent, consols, were, by the will of A, vested 
in trustees, in ^^ trust to pay, transfer, and dispose of the 
same, and every part of the fund, and also of the dividends, 
&c., for the sole and separate use and benefit of her daughter 
B, the wife of C, as she should direct or appoint," with a 
direction that B's receipt should, notwithstanding the 
marriage, be a good discharge to the trustees, in the pay- 
ment or disposal thereof according to her free will and 
pleasure. The husband obtained a transfer of the stock. 
B, his wife, made a will disposing of 400/., part of the stock, 
for a transfer of which the suit was instituted by the legatee 
agfdnst the husband ; and Lord Eldon decreed accordingly, 
observing that the first will only expressed a trust for the 
wife's separate use, not determining as to the power of dis^ 
position, whether by deed, or will, or other writing, but that 



(a) 9 Ves. 369 : see also Wag- chall v. Burcball, 3 Add. Eod. B. 
staff V. Smith, 9 Yes. 620 : and Bur- 263. 



222 MAT DISPOSE OF BBTBBSICR7ABT INTEBEST 

the natore of her interest ^ras settled, viz. that the trost 
being for her separate use, she was enabled to dispose of it 
by will as an incident to sach interest, or she might have a 
power to dispose by an instrument not amaanting to a will 
supported in that Court as a direction or appointment. 

5. And the wife has the same power of dispoong of rever- 
edonary interests, where settled to her separate use^ as of 
interests in possession. 

6. Thus, in Sturgis v. Corp (a)j money in the fimds, in 
which A had a life interest, was vested in trustees, in 
trust, after the death of A, to pay the dividends into the 
proper hands of B, for h^ sole and separate use for life, 
whose receipts should be good discharges; and after her 
death the capital was given to C. D, the husband of B, 
purchased C's interest, and then B and D sold by anction 
their reversionary interest, A being still livmg. The pur* 
chaser, before he would complete his contract, required B's 
consent in Court for the passing of her reversionaiy estate 
for life. And Sir William Grant said, that where property 
was settled to the separate use of a married woman, her ex- 
amination was unnecessary. That if the prindple was, that 
the wife is, as to that property, a feme sole, and has a dis- 
posing power as such, then B had as much a disposing power 
over her reversionary interest as over her interest in pos- 
session, (b) 

7. Mr. Roper notices the case of Whistler v. Newman (c) 
as at variance with the authorities which have been just 
stated. 

There, upon the marriage of Mrs. Newman, 1200/., 3^ 
per cent. Bank annuities (her property), were vested in trus- 
tees, in trust to pay the dividends into her hands for life, for 
her sole and separate use, and which were not to be liable to 

(a) 13 Yes. 190. (c) 4 Yes. 129 : see Mores v. 

(b) See also Headen v. Bosher, Huish, 5 Yes. 692. 
M'Cleland Sc Tou. a9 : and Major 

V. Lansley, 2 Buss, h M. 355. 



IN FEB80NALT7 AS FBIfS SOLE. 223 

her hosband^s debts, &o. Her receipt too was declared to be 
a good discharge. The trustees sold the stock at the request 
of Mr. and Mrs. Newman, and paid to him, with her consent^ 
the proceeds. He afterwards became insolvent, and died. 
The trustees then replaced the stock ; and the question, so 
&r as concerned the widow, was, whether, as the fund had 
been sold at her instance and request, she did not dispose of 
the dividends to which she was intitled to her separate use 
for life in favour of her husband. Lord Rosslyn dedded in 
the negative, and that she was intitled to the dividends 
which had accrued since her husband's death. His Lord« 
ship's reasons were, because this case differed from the others 
on the subject that it was between the widow and her 
trustees, and not between her and her separate creditors, 
and that it was a breach of trust in her trustees to pay, even 
with her consent, the dividends to the husband. 

8. Upon this case Mr. Roper observes (a) : ^^ first, that the 
wife being to be considered a feme sole as to her separate estate, 
and having the unlimited power of disposition over it, might 
give it to whom she pleased, including her husband. The 
dividends, therefore, were in this instance, upon the prin- 
ciple of the case of Fettiplace v. Gorges, and the other cases, 
effectually given by the wife to her husband ; and secondly, 
if she had such unlimited power of disposition, as is 
clearly established by those cases, and if she might, indepen- 
dently of her trustees, and without their concurrence, have 
given the dividends to her husband, as is also established 
by the cases of Grigby v. Cox (J), Pybus v. Smith (c), and 
Essex V. Atkins ((2), their having acted in compliance with 
her request could not with justice be considered a breach of 
their trust or duty towards her. It is conceived, therefore, 
that this case is not now of any authority." {e) 

(a) 2 Bop. H. h W. 185. {e) See Lord Eldon's observatioiiB 

{b) 1 Yes. Sen. 518. upon this case in Parkes v. White, 

{c) 1 Yes. Juii. 193. 1 1 Yes. 223. 
(lO 14 Yes. 647, 



.-?/:''.-. 






* T* ^ 



-/* 



ct- 



> /" 



224 POWER OVEB BEAL ESTATE, AND SAVINQ8. 

9. With respect to rents and profits of real estates, a gift 
of them to, or rather in trust for, the wife for her separate 
use, enables her to dispose of them as a feme sole, (a) 

10. But a limitation of real estate to the wife in fee to her 
sole and separate use, without expressing more, will not 
enable her to dispose of it during the marriage otherwise 
than by the modes by which she is allowed to dispose of 
other real estate, namely, by deed duly executed under the 
provisions of the late act for the abolition of fines and re- 
coveries (ft), and formerly by fine or recovery, because no 
power having been given to her by the instrument to make 
any disposition of the property, she can only do so by the 
mode prescribed by the general law ; and if she omit to do 
so, her heir will take the estate* 

11. Accordingly, she cannot make a will of such real 
estate, (c) 

12. With respect to the general power of the wife to dispose 
of the savings arising from her separate property, the prin- 
ciple is laid down by the Lord Keeper in the case of Gore r. 
Knight {d\ to the effect that the wife having a power to 
dispose of the principal, has necessarily the like power 
over its produce ; for the sprout is to savour of the root, 
and to go the same way. 

13. But when the wife does not dispose of such savings, 
the quality of separate property ceases at her death, and the 
husband is intitled to them by his marital right, (e) 

14. The wife may dispose of the produce of her separate 
estate by will, if she has such a power over her personal 
estate, but if it has been laid out in real estate, she cannot 
devise it. (/) 

(a) Hulmev.Tenant^ 1 B.C.C. 16. 1 Yes. Jun. 46; d B. C. C. 8 : and 

(6) See swpr^ cbap. 24^ sec 2. Cecil v. Jazon, 1 Atk. 278. 

(o) Doe d. Stevens v. Scott, 4 («) Molony v. Kennedy, 10 Sim. 

Bing.506 ; 1 Moo. &P.317. 255: see also Tugman v. Hopkins» 

(d) 2 Yern. 535 : seealso 1 Yem. 4 Man. & Gr. 389; 5 Scott, N. B. 

244 : Gold v. Rutland, 1 Eq. Ca. 464. 

A.b. 346^ pi. 18 : Fettiplace v. Gorges, (/) Churchill r. Dibben, cited in 



MAY INCUMBER SEPARATE ESTATE. 225 

15. In a late case (a), it was held that wearing apparel 
which had been bought by the wife out of the produce of 
property vested in trustees for her separate use, belonged to 
the husband, and might be taken in execution for his debts ; 
Parke, B., however, doubting whether the wife might not 
have been held to be the agent of the trustees for the purpose 
of buying the clothes. 

16. Arrears of separate estate, which were due to the 
wife at the time of a second marriage, have been held to belong 
to her as separate estate, (b) 

17. The wife having the power of absolutely disposing of 
her separate estate, she may consequently make grants out 
of, or otherwise incumber it. 

18. Thus, in Wagstaff v. Smith (c), 750Z. four per cent. 
Bank annuities were limited in trust " to permit B to take 
or receive the dividends to her own use for life, independent 
of her husband C, or any future husband." The husband 
and wife, in consideration of a sum of money paid to them 
by D, assigned the dividends to a trustee during B's life, to 
secure the grant of an annuity to D, and the grant was es- 
tablished. 

19. The case of Power v. Bailey (d) was to the like eflfect. 
There, previously to the marriage of A with her first husband 
B, it was by articles of settlement agreed that her estates 
should be vested in trustees for her sole and separate use, 
and that she should have full power and dominion over them. 
A, prior to the marriage of C, (for whom she was under 
promise to provide) settled, with the privity of B, and in 
execution of her power, an annuity upon C, which C and 
her husband afterwards mortgaged. Payment of the an- 
nuity having been discontinued by the second husband of A, 

note to Curteis v. Kenrick, 9 Sim. (b) Ashton v. M'Dougall, 5 Beay. 

447. 56. 

(a) Carne v. Brice, 7 Mees. & (c) 9 Ves. 521. 

TV. 183 ; 8 DowL P. R. 884 : see also (d) 1 Ball & Beat. 49 : see also 

chap. 9, infra. Parkes v. White, 1 1 Ves. 2 la 

VOL. II. Q 



226 GRANT OF ANNUITY BY Wll'E 

and a suit instituted by the mortgagee, Lord Manners de- 
cided that A's separate estate was bound by the grant. 

It will be noticed that this case is an additional instance 
of the wife's power of disposition over her real estates during 
the ^marriage, when they were not conveyed to trustees, and 
the power rested merely in agreement between her and her 
husband before the coverture, (a) 

20. Notice must here be taken of Mores v. Huish (6), a 
decision of the same judge who determined the case of 
Whistler v. Newman, (c) There the wife's freehold estates 
were vested in trustees, upon trust yearly to receive and pay 
the rents to her (A, the wife of B), as and when the same 
were received, or otherwise in their discretion to permit her 
and her assigns to receive them during her life, for her sole 
and separate use, notwithstanding her then present, or any 
fixture coverture. Her receipt was declared to be a sufficient 
discharge for the rents, and that they should not be liable to 
the debts, &c. of her then or any future husband^ but be 
solely at her disposal. The trustees after A's death were to 
pay the rents to B for life, and upon his decease to convey 
the estates to the children in tail general, and in default of 
issue, to the survivor of A and B in fee. A and B granted 
an annuity to C, secured upon the estates ; but before the 
deeds were executed, the surviving trustee gave notice to 
the annuitant, that he would not consent to any mort* 
gage or alienation, and informed him of the extravagance 
of B, the husband, who could give no security. Notwith- 
standing this caution, the purchase of the annuity was com- 
pleted. A bill was filed by C, to subject the rents of the 
wife's separate estate to the payment of the annuity. But 
Lord Rosslyn dismissed the bill, with costs : first, because he 
doubted the power of a married woman to give such a 
security ; secondly, because she had no power of appointment 



(a) See suproy p. 56. (c) Staled wprity p. 222. 

{b) 5 Ves. 692. 



i 



OUT OF SEPARATE ESTATE. 227 

given to her ; and thirdly, because the trust was that the 
trustees were to receive the rents and pay them from time 
to time to the wife's separate use; and fourthly, because 
C had notice from the surviving trustee not to complete the 
purchase. 

21. Upon this case Mr. Roper observes (a) : " To the first 
and second reasons it may be answered (as it has been before 
proved (/>) ), that the wife has absolute dominion over her 
separate property, and without the authority of a special 
power, to dispose of it as she pleases. Under this the wife's 
general power to alien her separate estate, the cases stated 
in the beginning of this section were decided. To the third 
reason it may be replied that the words ^ from time to time ' 
did not occur in this case, but that if they had occurred, or 
if the words used, viz. * as and when received,' be of the 
same import, their insufficiency to restrain the wife's general 
power of disposition incident to her having separate property, 
has been before shown, and will further appear from the cases 
after stated in this section. And with respect to any differ- 
ence being made by the trust being express that the trustees 
should receive and pay the rents to the wife, it cannot be 
contended with any degree of plausibility that it amounts to 
more than a mode to give the property to her separate use 
and disposal. Hulme v. Tenant (c) was a trust of this kind, 
and yet Lord Thurlow, after great consideration, held that 
such trust did not preclude the wife's power as a feme sole 
to alien her separate interest. And in Parkes v. White (rf). 
Lord Eldon considered a trust like the present to mean no 
more than a gift to the wife's separate use. 

"In answer to the fourth reason assigned by Lord Rosslyn, 
I shall state the case of Essex v. Atkins (e)y which is also an 
additional instance of the grant of an annuity by a married 
woman out of her separate estate being supported. There 

(o) 2 Rop. H. & W. 249. (d) 1 1 Ves. 209. 

(b) Supra, p. 224. (e) 14 Ves. 542. 

{c) 1 B. C. C. 16 5 2 Dick. 560. 

Q2 



L 



228 EFFECT OF ASSENT OR DISSENT OF TRUSTEES 

the object of the bill was to establish the grant of an annuity 
out of 3000/. 5 per cent. Bank annuities bequeathed to A 
before her marriage with B, which were not to be subject to 
the debts, control, or engagements of any after-taken husband. 
The wife insisted by her answer that she did not voluntarily 
consent to the transaction, but that her concurrence was ob- 
tained by duress. Evidence was produced on the part of the 
annuitant, that the business was explained to the wife, and 
that she was anxious that it should proceed ; that the deed 
was read to her, and that she appeared satisfied. It was 
also proved that one of the executors or trustees informed 
the annuitant before th6 transaction was completed, that he 
and his co-executors would not pay any of the dividends 
except to A, and that he also stated to the annuitant com- 
plaints made by the wife of her husband's ill-treatment in 
consequence of her refusal to join him in raising money ; the 
executor also produced the will. Under these circumstances 
the question was, whether the Court would enforce payment 
of this annuity out of the wife's separate estate ? And Sir 
William Grant said that the only doubt which he had in the 
case arose out of Lord Rosslyn's judgment in Mores v. Huish, 
in which case the bill of a purchaser of an annuity was dis- 
missed upon the ground that he had notice from the trastee 
of the wife that it was a very bad and improvident bargain, 
and that he never would consent to it : that in this case 
(Essex V. Atkins) the purchaser was cautioned against 
making the purchase by the trustee, upon the ground that 
the married woman had expressed great reluctance to pledge 
or part with her separate property for the accommodation of 
her husband, and that if he did purchase, they never would 
pay ; therefore, according to Lord Rosslyn's opinion in Mores 
V. Huish, the Court ought not to interpose under such cir- 
cumstances, for the purpose of giving effect to the purchase. 
After thus comparing the two cases, his Honour observed, in 
opposition to Lord Rosslyn's opinion, that it was only in 
equity that the contract of a married woman with regard to 



UPON wife's power of disposition. 229 

her separate property could be inforced ; the Court, therefore, 
must of necessity decide upon its validity, and could not 
leave the purchaser to a legal remedy, because he had none ; 
so that not to act was the same thing in effect as setting 
aside the contract ; and his Honour added, that he did not 
know how he could say that the annuitant ought to have no 
remedy of any kind, except upon the ground that there was 
no valid contract. The Master of the Rolls then, in allusion 
to the opinions of Lords Thurlow and Rosslyn, observed, that 
in some cases Lord Thurlow acted with extreme reluctance 
for the purpose of giving effect to the improvident engage- 
ments which the wife had entered into ; yet he did not think 
himself at liberty to say that the Court would not at all in- 
terpose where the subject was entirely of equitable juris- 
diction. Upon the effect of the assent or dissent of trustees 
upon the wife's power of disposing of her separate property, 
his Honour remarked, that if the transaction could not upon 
its own merits be impeached, he did not see how any decla- 
ration by the trustee in this case could render it null and 
void. The established doctrine was (notwithstanding Lord 
Rossl3m's doubt), that a married woman can bind her separate 
property without the trustees, unless their assent is rendered 
necessary by the instrument giving her that property, (a) 
Their dissent, therefore, could not have any effect where 
their assent was unnecessary, and their declaration that she 
was unwilling could not be evidence of the fact that she 
parted with her property by coercion. Upon the whole, his 
Honour concluded, that if upon the evidence the wife was a 
free agent, and understood what she did, the Court had no 
choice, but must give effect to her contract ; that the evidence 
proved her consent, and there was nothing in it which would 
have authorised the Court to set aside the agreement if she 
had filed a bill for the purpose. The contract was therefore 
enforced. 

(a) See infrtty p. 241. 
Q 3 



230 * MB. ropeb's remabks. 

" This case, and the principle upon which it was decided, 
a principle that has been repeatedly acknowledged and acted 
upon both before and since Mores v. Huish, have taken 
away all authority firom that case and from that of Whistler 
V. Newman, before stated, (a) " 

(a) Suprdy p. 222 : and see Allen v. Papworth, 1 Yes. Sen. 16d» 



WHERE WIFE HAS POWER OF APPOINTMENT. 



231 



CHAPTER IIL 

OF THE WIFE'S POWER OF DISPOSITION WHERE THE LIMIT- 
ATION TO HER SEPARATE USE MERELY GIVES HER A PARTIAL 
INTEREST, WITH A POWER OF APPOINTING THE CAPITAL; 
AND OF THE CASES WHERE THE LIMITATION, THOUGH IN 
THE FORM OF A POWER, GIVES HER THE ABSOLUTE IN- 
TEREST. 



SECTION L 



OF THE WIFE'S POWER OF DISPOSITION, WHERE THE LIMIT. 
ATION TO HER SEPARATE USE MERELY GIVES HER A PARTIAL 
INTEREST, WITH A POWER OF APPOINTING THE CAPITAL. 



3. Gifk expressly for iife^ wUh 

power to appoint by tvilL 
4* Bradley v. fFestcott. 

6. (/Keate v. CaUharp. 

7. Reidy. Shergold, 

8. Anderson v. Dawson. 

9. Conclusion from above cases. 

11. Effect of limitation to wife for 

life, and in default of appoint- 
ment^ to her executors or ad^ 
ministrators, 

12. Mr. Roper^s opinion. 
18. Mr. Jacobus remarks, 

14. Opinion of V. C. Wigram. 



15. Ultimate limitation to wife's ex^ 

ecutors **for their own use and 
benefit.'* 

16. Limitation for wifes separate 

use for lifcy to be absolutely 
her^s if she survives^ unth power 
to appoint on dying before 
husband. 

17. Richards v. Chambers. 

18. Lee v. Muggeridge. 

19. Mr. Jacob's remarks. 

21. Trustees need 7wt join in ap- 
pointment unless their con- 
currence expressly required. 



1. In the instances which we have before considered, no 
particular mode of disposition was prescribed for the wife 
to dispose of the funds settled to her separate use ; con- 
sequently, any appointment of them in writing was sufficient. 
But there are cases in which, in addition to a limitation of 
property to the wife's separate use, she has expressly given 
to her a power of appointment. 

Q 4 



232 EFFECT OF GIFT FOB LIFE, 

2. In what instances it will or will not be necessary for 
the wife to execute the powers so given to her, depends 
upon the point whether, from the effects of the gift or 
limitation of the property to her, she takes an estate for 
life only to her separate use, with a power to dispose of the 
capital, or whether (although the fund be apparently given 
to her so as merely to authorise her power over it by 
appointment) the limitation will amount to a gift of the 
absolute interest in the property, so as to enable her to 
dispose of it without the necessity of executing the power. 

3. It is settled that where there is an express limitation 
for life^ with a power to dispose by will, the interest is 
equivalent only to an estate for life, and the power is to 
be executed, primd facte at least, by will, on the ground 
that a partial interest having been expressly given, it will 
not be permitted, contrary to the intention expressly de- 
clared to be enlarged by implication. 

4. Thus, in Bradley v. Westcott (a), A bequeathed to his 
wife, B, all his personal estate to her sole use for life, to be 
at her absolute disposal during that period ; and after her 
death he gave such of his wife's jewels, &c., household 
furniture, and plate, of which she should be possessed at 
her death, with 500Z., as she should by will appoint, and in 
default of appointment the same were to be considered as 
parts of his residuary estate. And Sir William Grant, 
M. R., decided that the wife took an estate for life only in 
the whole, with a power of appointment : his Honour justly 
observing that, since the testator had given to his wife in 
express terms an interest for life, he could not, under the 
ambiguous words afterwards thrown in, extend that interest 
to the absolute property; which words he must construe 
with reference to the express interest for life previously 
given, viz. that she was to have as full, free, and absolute 
disposition as a tenant for life could have, (b) 

(a) 13 Ves. 445. 451 : see Anon. {b) See Tomlinson v. Digbton, 1 
3 Leon, 71. P. W. 149 : Nannock ». Horton, 7 



WITH POWER OF APPOINTMENT. 2^33 

6- So, in O'Keate v. Calthorpe (a), 4099Z. old South Sea 
annuities, and other funds, were transferred by marriage 
articles to trustees, in trust to permit the wife to receive 
the profits to her separate use, and if she survived, to 
transfer the whole to her; but if she died before her 
husband, then to transfer the property according to her 
appointment, by deed or will; and in default of appoint- 
ment, to the issue ; and if none, then to the husband and 
the wife's brother, in moieties. She made no appointment. 
Upon a bill praying that part of the funds might be applied 
as the wife should appoint, the Court said, that if she had 
any power over the principal, let her make an appointment, 
the effect of which would be considered ; but till then the 
Court would not interfere. Here, however, if the wife had 
appointed, according to the suggestion of the Court, the 
appointment would have had no effect upon the capital 
fund during the marriage, nor at its termination, unless 
she died before her husband, (i) The case, however, 
manifests what the Chancellor considered to be the law of 
the Court in the year 1739, when the decree was made, 
viz. that when the wife took for life, with an absolute 
power of appointment, the Court would not decide anything 
in regard to the capital, except upon her appointment under 
the power. 

7. In Reid v. Shergold (c), the testator devised his copyhold 
estates to trustees, in trust for the sole use and benefit of 
his niece, B, for life ; and the trustees were directed to pay 
the rents and profits, or suffer B to receive them for her 
own use, notwithstanding her marriage, and after her death 
the estates were to be in trust for the sole use and benefit, 
and for the maintenance of B's daughter C, who was to have 

Ves. 392. 394. 398: Reid v. Sher- (a) 8 Ves. 177. 

gold, 10 Ves. 370 : Anderson «. {b) See Appendix, No. 4. 

Dawson, 15 Ves. 532 : Reith v. Sey- (c) 10 Ves. 370—380. 

mour, 4 Russ. 263 : Archibald v. 

Wright, 7 Law J. N. S. Chan. 121 ; • 

2 Jur. 759. 



234 EFFECT OF GIFT FOR LIFE, 

a conveyance of them at twenty-one, or upon the death of B ; 
but if C died before twenty-one, then he gave the premises 
to such person or persons as B by her will, to be duly 
executed, should appoint. The trustees were empowered 
to sell the premises at the request of B, and the proceeds 
were to be invested, and they and the capital were to be 
upon the same trusts as before declared of the estates. 
And as to the testator's residuary real and personal pro- 
perty, he devised the same to his nephew D. The daughter 
C died under twenty-one, and before B, her mother ; who 
having made a will under her power, and afterwards sur- 
rendered the legal estate of the copyholds (which she had 
previously acquired from the sole acting trustee) to a 
purchaser, in consideration of an annuity. Lord .Eldon 
decided these three points; first, that B only took an 
interest for life, with power to dispose of the inheritance 
by will only, as required by the power* Secondly, that the 
surrender was a revocation of the will; and thirdly, that 
the surrender could not be considered an execution of the 
power; his Lordship observing that the testator did not 
mean that B should so execute her power ; on the contrary, 
that he intended that she should give by will, or not at all ; 
and that it was impossible to hold that the execution of an 
instrument or deed, which, if it availed to any purpose, 
must avail to the destruction of that power which the 
testator meant to remain capable of execution to the moment 
of B's death, can be considered in equity an attempt in or 
towards the execution of the power. His Lordship therefore 
decided that the purchase could not stand, as also for 
another reason, viz. that the consideration being an annuity, 
could not either at law or in equity be said to be within the 
intention of the power. 

8. Li Anderson v. Dawson (a), QOOL stock was vested in 
trustees, in trust for them to receive the dividends during 
the life of A, and to pay the same to her and her assigns, 

(o) 15 Ves. 532. 



WITH POWER OF APPOINTMENT. 235 

notwithstanding her coverture, for her sole and separate 
use for life ; and after her death to transfer and pay the 
capital stock and dividends to such person and persons, &c., 
as A, notwithstanding coverture, in and by her last will, in 
writing, or by a writing in the nature of her will, to be 
executed, &c., should direct or appoint ; and in default of 
appointment, &c., then in trust for A's next of kin, according 
to the statute of distribution. A having survived her 
husband, called for a transfer of the 6002. stock, under the 
idea that she was then absolutely intitled to receive it, 
notwithstanding the inference to the contrary arising from 
the limitation to her of the dividends only for life, with a 
power to appoint the capital by will; but Sir William 
Grant, Master of the Rolls, said, that A was merely intitled 
for life, with a power of disposition by will, and that 
therefore he could not decree that the trustees should 
transfer to her, or according to her direction, and he dis- 
missed the bm. 

9. From the cases before stated, the following conclusions 
may be drawn : that when the wife takes an express estate 
for life in the fund, with a power to appoint the principal 
after her death, in such inst.ances the wife can only dispose 
of the capital by an execution of her power, which may be 
immediate, if the power authorise a deed ; but if it require 
the appointment to be made by will only, the disposition 
cannot take effect till after the appointor's death, and the 
wife is precluded from making an immediate disposal of the 
fund, (a) 

10. Sockett V. Wray (6), decided by Lord Alvanley, is also 
an authority for the latter proposition; and although the 
decision has been disputed, yet it is conceived that the 
principle acknowledged in Reid tf. Shergold and Anderson 
V. Dawson, before stated, supports the decree. The trusts 
declared in Sockett v. Wray were, that the trustees should 
from time to time during the life of A, the wife of B, pay 

(a) Doe V. Thorley, 10 East, 438. (b) 4 Bro. C. C. 483. 



236 EFFECT WHERE GIFT IN DEFAULT OF APPOINTMENT 

the dividends of 1234/. three per cent, consols into the 
proper hands of A, for her sole and separate use, and after 
her death upon trust " to transfer the capital to such person 
or persons, at such time and times, in such parts, &c., and 
in such sort, manner and form, subject to such powers, 
provisoes, conditions, restrictions, and limitations as A, by 
herself alone, whether sole or covert, and notwithstanding 
her then present coverture, during her life, by her last will 
and testament in writing, or any 'writing purporting to be 
her last will and testament, to be by her signed and pub- 
lished in the presence of, and attested by two or more 
credible witnesses, should give, bequeath, direct, or appoint." 
The ultimate limitation in default of appointment was to A, 
her executors or administrators, for their own use and 
benefit. Lord Alvanley held that the wife could not by 
deed or other irrevocable act dispose of the capital fund, 
but only by an ambulatory and revocable act, viz. by a will 
or any instrument in the nature of a will. 

11. It has been intimated in some of the cases, that 
although an express estate be given to the wife's separate 
use for life, with a power to dispose of the principal, yet if, 
in default of appointment, such principal be limited to her 
executors or administrators, and not to her next of kin, the 
absolute interest in the fund will vest in her, and be dis- 
posable with her husband's concurrence, without resort to 
the particular power given her for the purpose. The 
principle of the distinction is this : that in the former case 
the wife is to be considered complete mistress or owner of 
the property, the eflfect of such limitation being compared 
to that of a limitation to her right heirs, which, in the 
instance of real estates, vests the absolute inheritance ; but 
that in the latter case the limitation to the wife's next of 
kin being the same in efiect as that to particular heirs, 
which, if the subject were lands, would not pass the fee 
to a donee or devisee, will not therefore vest the absolute 
interest in personal estate in the wife, and consequently. 



IS TO wife's executors or administrators. 237 

that in order to dispose of the capital, the wife must have 
resort to her special power. 

J 2. Mr. Roper, however, is of opinion (a), that this 
analogy between real and personal estates is not applicable 
to the subject now under consideration ; but that when the 
limitation in default of appointment is to the wife's executors 
or administrators, it will be required that she should execute 
her power in order to dispose of the fund during her mar- 
riage, (b) " The reasons," he remarks, " are these : ad- 
mitting the limitation to impart to the wife the absolute 
interest in the fund, yet she being a married woman, the 
effect of such a limitation to her is quite different from a 
similar one to a man or to a single woman ; for in the 
instance of such a limitation to a married woman who is 
under a legal incapacity to dispose of property during 
coverture, there is no repugnancy nor inconsistency between 
a limitation to her of the absolute interest, and a particular 
power of disposition over it during the marriage, as appears 
in a former part of this work relating to powers, and 
also under the title * curtesy,' where it is shown that an 
equitable interest for the wife's separate use for life in real 
estate, and the ultimate limitation to her of the fee simple, 
do not unite in such a manner as to merge the particular 
estate and extinguish the special limitation to her separate 
use for life, (c) The analogy, therefore, mentioned in the 
commencement of these observations, is inapplicable to 
limitations to married women, and it does, not authorise the 
conclusion that when the wife has an estate to her separate 
use for life in personal property, with a power of appoint- 
ment, and the absolute interest is limited to her if she 
do not execute the power, she has, in analogy to similar 
limitations of real estates at law, such an absolute estate as 
of necessity enables her to dispose of the property without 
regard to her special authority to do so. This necessity, 

(a) 2 Rop. H. & W. 212. (c) See supra, vol. L p. 138 

(b) See Appendix, No. 4. 



238 MB. Jacob's observations. 

therefore, not existing, and when the settlor's intention 
in giving such a power is considered, as also the anxiety of 
a Court of Equity to protect the wife's property against 
improvident dispositions of it from restraint, &c., during the 
marriage, it seems but reasonable that, when an express 
estate for life in personalty is limited to her for her separate 
use, with a power of appointment, and in default of its 
execution to her, her executors or administrators, the same 
appointment should be considered necessary, as has been 
decided to be so when the ultimate limitation in default of 
appointment is to her next of kin. (a) " 

13. Mr. Jacob remarks (i), "a distinction is to be 
noticed between those cases where, after a limitation to a 
party for life, with a power of appointment, the principal 
is limited, in default of appointment, to the same party or 
to his or her representatives, and those in which, in default 
of appointment, the principal is limited or results to other 
persons. In cases of the latter class, the donee has not the 
absolute interest ; if the power be not exercised, the Hmita* 
tion in default of appointment takes efiPect and vests the prin- 
cipal in others ; it can therefore only be disposed of by virtue 
of the power. Bradley v. Wescott (c). Croft v. Slee {d)j 
O'Keate v. Calthorpe (e), Reid v. Shergold(/), and Ander- 
son V. Dawson (g)^ are cases of this kind. In cases of the 
former class the donee has the entire beneficial interest in 
the principal, and consequently (if not under disability) 
may dispose of it independently of the power, by virtue of 
the general right of alienation which is incident to property. 
But if the donee be a feme covert^ her absolute right to the 
property does not carry with it a general right of alienation, 
unless the property be given to her separate use. If the 
principal be in eflFect given generally to her separate use, 

(a) See Anderson v. Dawson, {d) 4 Yes. 60. 64. 

stated suprhy p. 234. (e) Cited arite^ p. 233. 

{h) 2 Rop. H. & W. 200 «. (/) Ibid, 

(c) Cited ant^, p. 233. {g) Cited ante, p. 234. 



OPINION OF V. C. WIGRAM. 239 

she has an unqualified power of disposition ; if not, it seems 
that she can only dispose of it by means of the power, (a) " 
14. The point was considered in the late case of HoUoway 
V. Clarkson (6), where a testator directed the produce of his 
estate to be divided among several persons, some of whom 
were married, and others were unmarried women, and he 
directed that the shares of each such as were females should 
be for her separate use during her Hfe, and after her decease 
upon such trusts as she should by deed or will appoint, 
and in default of appointment, in trust for her executors, 
administrators, and assigns, as part of her personal estate ; 
the married and unmarried women being desirous of having 
the opinion of the Court as to their immediate power of 
dealing with their shares. Sir J. Wigram, V. C, after re- 
marking that any opinion which he might express would 
be extrajudicial, and holding that the unmarried women 
might make an immediate disposition (c), said that he felt 
more difficulty with respect to the power of the married 
women. In the case of real estate, the estate for life of A 
preceding mesne limitations, and followed by a remainder 
to the heirs of A, amounted to a fee ; but the principle did 
not extend to give by analogy an absolute interest in personal 
estate to a married woman, on a limitation to her for life, 
with remainder to her executors, administrators, and assigns. 
The mere fact of taking a life estate in personal property had 
not the eflfect of enlarging the operation of the gift in re- 
mainder to the same person. The married legatees might 
of course exercise the particular power which the will gave 
them: whether they could during their coverture in any 
other manner dispose of their shares in the fund, was a 
question which the authorities induced him to abstain from 
deciding until it was regularly before him. (d) 

(a) See further on this suhject, (b) 2 Hare, 521. 

Heatlej V. Thomas, cited post^ p. 244: (c) See Devall v. Dickens^ 9 Jur. 

Sockett V. Wray, cited anti, p. 235 ; 550 ; 2 Eq. R. 267. 

and Lee v. Muggeridge, cited post, (d) On& subsequent day petitions 

p. 241. were presented by the married wo- 



240 WHERE FUND LIMITED TO WIFE 

15. In the case of Sanders v. Frank (a), Sir Thomas 
Plumer, V. C, held that a limitation of personal estate to a 
widow in her husband's will during life, with a power of ap- 
pointment after her death, and in default of such disposition 
to her executors or administrators for their own use and 
benefit (i), did not vest the absolute interest in the widow, 
but that she had an estate for life only, with a power to 
dispose of the fund, upon the principle that the executors or 
administrators took as purchasers in their own rights, and 
not by representation. 

His Honour then said it had been observed that a gift of 
personal estate to a person, his executors or administrators, 
was equivalent to a gift to such person and his heirs of real 
estate, and that it was so because each disposition carried 
the whole interest ; but that in this case the bequest being 
to the executors or administrators, for their own use and 
benefit, gave them the property beneficially, and not as 
trustees ; that a gift to the heirs of A B of lands was no gift 
to A B, and by the same analogy a gift of personalty to the 
executors or administrators of A B, for his and their own use 
and benefitj was no gift to him. He therefore decided, that 
the will having been neither executed nor attested, was a 
void execution of the power, and that the property belonged 
to the widow's administrator by purchase, and not by repre- 
sentation. 

16. An express provision that in the event of the wife 
surviving the property shall be absolutely hers, implies an 
exclusion of a power of so appointing it during the coverture 
as that it shall not in that event belong to her. Instances 
of such a limitation will be found in the cases of Richards 
V. Chambers (c), and Lee v. Muggeridge. (d) 

men for transfers of their shares, prct^ the ultimate limitation was in 

and his Honour considering the pe- the same terms : but see Wellman 

titions equivalent to an appointment, v. Bowring, 1 Sim. 8s Stu. 24, and 

made the orders, 2 Hare, 527. p. 202, ante. 

(a) 2 Mad. 147. 155. (c) 10 Ves. 380. 

(/>) In Sockctt r. Wray, cited su- {d) 1 V. & B. 118. 



ABSOLUTELY ON SURVIVING HUSBAND. 241 

17. In Richards v. Chambers, personal property was settled 
on the marriage, in trust for the sole and separate use of the 
wife for life ; and if she survived her husband it was to be 
absolutely hers ; if she died in his life, it was to go to such 
persons as she should by deed or will appoint ; and in default 
of appointment, to her executors or administrators. It was 
held by Sir W. Grant that she could not, during the coverture, 
make an absolute disposition of the principal. 

18. In Lee v. Muggeridge, the marriage settlement con- 
tained similar limitations, excepting that the power of ap- 
pointment was to be exercised by will : and it was decided 
by Sir W. Grant, that the wife could not during the cover- 
ture dispose of the principal, and consequently that a bond 
given by her in her husband's lifetime did not bind the pro- 
perty after his death. 

19. In these cases, as Mr. Jacob notices (a), the power did 
not authorise an immediate disposition, and the property 
not being given to the wife's separate use generally, she 
could not aflfect the principal, except by virtue of the power. 

20. So, in the late case of Nixon v. Nixon (6), where the 
fund was limited in trust for the separate use of the wife 
during the joint lives of herself and her husband ; and if she 
should survive him, then in trust for her and her assigns for 
her life, and after her decease, as to one moiety of the fund, 
for her use, to be disposed of by her in such manner as she 
should, by deed or will, notwithstanding her coverture, 
direct, it was held by Sir E. Sugden, C, that she could not 
dispose of the moiety during the coverture. 

21. Where an appointment by the wife is necessary, the 
trustees acting on her behalf need not join as parties to 
it, unless their concurrence be expressly required by the 
power, (c) 

• 

(a) 2 Rop* H. & W.211. 518: Essex v. Atkins, 14 Ves. 547: 

lb) 2 Jones & Lat. 416. Pjrbus v. Smith, 1 Ves. Jun. 169. 

(c) Grigby «. Cox, 1 Ves. Sen. 193. 

VOL. TI. R 



242 



WHERE WIFE MAY DISPOSE OP FUND 



SECTION IL 

OF THE CASES WHERE THE LIMITATION, THOUGH IN THE 
FORM OF A POWER, GIVES TO THE WIFE THE ABSOLUTE IN- 
TEREST. 



1. ff^e may in ntch cases dispose 
of fund vnfhout exercising 
special power. 

4. Hales v. Margerum. 

5. Mr. Roper^s remarks thereon. 



6. Headey v. TJiomas. 

7. Mr, Jacobus observations thereon, 
9. Whether wife must exercise 

special power where her in^ 
terestfor life only. 



1 . The express gift of an estate for life being the ground 
and principle, as before noticed, why the general power of 
disposition over the fund limited to the tenant for life 
prevents such interest from merging, and vesting absolutely 
in him or her the property to which such power of disposal 
is attached, it seems to be a necessary consequence that if 
no preceding express life estate be given to the donee of 
such a power, the absolute interest will pass by it. If, 
then, the fund be given to the wife, to be " at her sole and 
separate disposal," or to be disposed of by her " by will or 
deed," notwithstanding coverture (a) ; the absolute interest 
will vest in her, which she may dispose of as a feme sole 
under her general power to do so, and without any of the 
ceremonies required by the special power provided for her. 

2. Thus, in Elton v, Sheppard (6), A bequeathed to trus- 
tees 2000?., " in trust to pay the interest to her daughter 
B, the wife of C, for her own sole and separate use, and she 
authorised, empowered, and appointed B to give and dispose 
of the 2000Z. as B should by any will or writing under her 

(a) Robinson v. Dusgate, 2 Vern. 108 : and see Lomas v. Matthews, 

181 : MaskelynetJ.MaskelTne, Ambl. 4 Law J. N. S. Chan. 238. 

750 : Phillips v. Chamberlaine, 4 {b) 1 Bro. C. C. 532. 
Vcs. 51. 58 : Hixon v, Oliver, 13 Ves. 



WITHOUT EXERCISING POWER. 243 

hand direct and appoint." And the Master of the Rolls was 
of opinion that the first words, " in trust to pay the interest 
to B for her separate use," being unaccompanied by words 
limiting the duration of the trust, gave her the absolute 
interest, and that the subsequent words giving her the 
power of appointment were merely an anxious expression 
of the testatrix's intention that B should have an uncon- 
trolled power of disposing of the fund. He therefore de- 
clared that B was absolutely intitled to the 2000^. 

3. There is a species of limitations (very similar to those 
in which the wife takes only an estate for life, with a power 
of appointment) which, without minute attention, are likely 
to mislead, since such limitations have been held to give 
the wife an absolute interest, on the ground that it was the 
testator's intention that the wife should have the property 
absolutely, quahfied and guarded only during the coverture 
in respect of her situation as a married woman, and to 
prevent the fund, upon her death, becoming the property 
of her husband as her administrator, in the event of his 
being the survivor. Of this class, the above case of Elton v. 
Sheppard may be considered one. 

4. In Hales v. Margerum(a), A gave to his executors 
1000/., in trust for the sole and separate use and benefit of 
his daughter B, and not to be liable to the debts, &c. of her 
then present or any future husband ; and that all interest 
which should become due after the testator's death should 
be paid to B for her own separate use and benefit only, 
whose receipt, notwithstanding coverture, should be a good 
discharge ; that whenever B died the lOOOZ. should be ab- 
solutely in her own power to dispose of by her will, or any 
deed or writing purporting to be her last will, to any person 
or persons, &c, notwithstanding her coverture, at her death 
or any other restriction. But in default of any such dis- 
position or appointment, then the lOOOZ. should belong to 

(a) 3 Ves. 299. 
R 2 



244 WHERE WIFE MAY DISPOSE OF FUND 

the testator's grand-daughter, C. Lord Alvanley, M. R., 
held that B, under the above limitation, took an absolute 
interest in the lOOOZ., and that it passed by her will as her 
own property, and not under the power. 

5. Upon this case Mr. Roper observes (a) that the first 
trust declared of the money was absolute in favour of the 
wife for her separate use, and that the subsequent qualifica^ 
tions were merely added in consideration of her then state of 
coverture, and were not intended to abridge the absolute 
interest first given to her. However, as Mr. Jacob no- 
tices (i), the Court, in holding that the daughter took the 
absolute property, seems to have disregarded that part of 
the will by which the fund was, in one event, given to the 
grand-daughter. 

6. The case of Heatley v. Thomas (c) is similar in prin- 
ciple to the last, and arose upon a settlement by which the 
wife's legacy of 2000/., and her annuity of 150/., were vested 
in trustees upon trust for the sole and separate use and 
benefit of the wife during the then intended marriage between 
her and B, the interest of which was to be paid half-yearly 
during the coverture to the wife's proper hands for her sole use 
and benefit ; and it was declared that she might during the 
marriage, by her wiU in writing, or any writing purporting 
to be her will, signed by her and attested by two or more 
credible witnesses, give or dispose of the 2000/. and the in- 
terest to such person or persons, &c. ; and that if she died 
before her husband, B, and without making any will or other 
disposition, then that upon her death before B, the same was 
to be divided according to the statute of distribution, in case 
she had died intestate and unmarried. The wife and her 
husband joined in a bond as a surety for C, who having be- 
come a bankrupt, the question was, whether the obligee could 
aflFect the wife's separate estate ? And Sir William Grant, 
M. R., decided in the affirmative. 

(a) 2 Rop. a & W. 203. (c) 15 Vea. 597. 

(b) Ibid. 203 n. 



WITHOUT EXERCISING POWER. 245 

?• Upon this decision Mr. Jacob remarks (a), " The report 
of this case does not contain the grounds of the decision : 
but from the observations of Sir William Grant on a subse- 
quent occasion (6), it appears that he considered that the 
settlement in effect gave the principal to the wife's separate 
use generally. He stated that there was a declaration of 
trust as to the whole fund for the sole and separate use of 
the wife, not as to the interest only. The other directions 
he thought were rather consequential to this declaration than 
contradictory to it. There was not an express provision, 
that in the event of the wife surviving, the property should be 
absolutely hers ; which would imply an exclusion of a power 
of so appointing it during the coverture, as that it should 
not, in that event, belong to her : and farther, it was to be 
collected from the whole instrument, that she was to have a 
power not only of appointing by will, but of disposing of the 
fund in any other manner. The construction that the settle- 
ment was intended to give her a power of appointing other- 
wise than by will, derived support from the part providing 
for the event of her dying without making any will or other 
disposition; but the above remarks do not entirely accord 
with the statement of the settlement contained in Vesey, ac- 
cording to which it was provided that the fond was to belong 
to the wife in the event of her surviving, (c) " 

8. In the late case of Tawney v. Ward (c?), where a testator 
desired his daughter's share to be secured in the funds, and 
for his trustee to pay her the dividends, and he wished that 
neither the principal nor the interest of the funds should be 
subject to the control of any husband she might marry, but 
that the same should be subject to her will only properly 
executed, whether covert or sole, at her decease, it was held 
that the daughter took an absolute interest. 

{a) 2 Rop. H. h W. 204 n. (d) 1 Beav. 563 : see also Baker 

(6) Lee r. Muggeridge, 1 Ves. & v. Newton, 2 Beav. 112; 3 Jur. 

B. 123. 649 : and Mayer v. Townshend, 3 

(c) 15 Ves. 598. Beav. 443. 

R 3 



246 WHERE wife's interest for life only. 

9. The preceding observations apply to the powers of dis- 
position by married women of the absolute interest in the 
capital of the fund. It sometimes happens that a wife is 
only intitled for life to interest or rent of the property to her 
separate use ; and it has been before noticed, that if no par- 
ticular power to dispose of them be given, she may do so 
under her general power as a feme sole, (a) It is conceived 
that this general power will not be suspended by any par- 
ticular mode prescribed in the instrument limiting to her the 
property, upon the principle that the wife, having a general 
power resulting from the estate for life given to her separate 
use, she may either dispose of her interest under such general 
power (unless she be restrained by express words from 
alienating by anticipation), or she may dispose of it in the 
particular manner prescribed by the special power. Upon 
this principle, as it would seem. Sir William Grant decided 
the case of Chesslyn v. Smith (6), and upon the same principle 
the decisions in Elton v. Sheppard, Hales v. Margerum, and 
Heatley v. Thomas appear to depend, (c) 

10. If, therefore, the interest of a fiind be directed to be paid 
as A, a married woman, should appoint by note or writing 
under her hand, and for want of such appointment, then into 
her own hands for her separate use for life, it is conceived 
that A may dispose of it either under her general power in- 
cident to her life estate, or by the particular mode prescribed 
by the special authority, (d) 

(a) Ante, chap. 2. 501 : Brown r. Like, 14 Ves. 302 : 

(b) 8 Ves. 183. Bullpin v. Clarke, 17 Ves. 365 : and 

(c) Cited supra, p. 242. et seq. Stead r. NelsoD, 2 Beav. 245. 
(rf) See Witts r. Dawkins, 12 Ves. 



DEFECTIVE APPOINTMBNT BY WIFE. 



247 



SECTION m. 

IN WHAT CASES RELIEF WILL BE GIVEN IN EQUITY, WHERE 
THE WIFE HAS MADE A DEFECTIVE APPOINTMENT. 



2. Appoinimeni supplied in favour 
of purchaser^ incumbrancer^ or 
creditor. 



3. But not of husband. 

4. Or volunteer. 

5. Non-execution not remedied. 



1. We have just seen that when the wife takes only a 
partial interest, as for life, with a power to appoint the 
capital, she must duly execute such power, in order to pass 
the absolute interest in the fiind. 

2. But when the appointees are purchasers, incum- 
brancers, or creditors, defective executions of powers are 
supplied by courts of Equity in favour of such persons. 
And defective appointments, when made by married women, 
form no exception to this rule, (a) 

3. It has been already noticed that a defective execution 
of a power by the wife in favour of her husband, unless where 
he claims as a purchaser, will not be supplied. (6) 

4. Nor will a defective execution of a power be supplied 
where the appointee is a volunteer, (c) 

6. And Equity will not interfere if no attempt has been 
made to execute the power, (d) 

6- However, where the wife has neither power over, nor 
interest in, the capital, but the annual produce only is 
limited to her separate use for life, with a particular power 
to dispose of it, not amounting to a prohibition to alien it 



(a) See 2 Sug. Pow. 96, 7th ed. : (c) 2 Sug. Pow. 95, 7th ed. 

and Dowell v. Dew, cited p. 60, (d) Btdl r. Vardy, 1 Ves. Jun. 

ante. 270 : see also 2 Vern. 69 : 1 Bro. 

{b) Vol. I. p. 31, ante. C. C. 21 : 17 Ves. 388. 460. 462. 

R 4 



248 DEFECTIVE APPOINTMENT BY WIFE. 

by anticipation, or where she takes an absolute interest in 
the fund, accompanied with certain powers or qualifications 
for the disposal of it, merely prescribed in consequence of 
her condition as a married woman ; in these cases, since 
special appointments under the particular powers are un- 
necessary, there is no occasion for a court of Equity to 
supply any deficiencies in them, it being presumed that, if 
the wife by deed or will purport to dispose of or incumber 
her separate estate, the disposition will take effect out of her 
separate interest, if it cannot do so under a due execution of 
her power. 



WIFE S GENERAL CONTEACTS. 



249 



CHAPTER IV. 

OF THE LIABILITY OF THE WIFE'S SEPARATE ESTATE TO HER 
DEBTS AND CONTRACTS; AND OF HER SEPARATE CHARACTER 
IN EQUITY IN REGARD TO PROCEEDINGS BY OR AGAINST 
HER. 



SECTION L 



OF THE LIABILITY OF THE WIFE'S SEPARATE ESTATE TO HER 

DEBTS AND CONTRACTa 



6. Wif^s general contreicts b inding 

on separate estate, semble. 

7. Wifis separate estate charged 

by her bond, 
9. Hulme v. Tenant, 
11. Or promissory note, 
13. Or promise in writing. 



14. Contracts in reference to sepa^ z^'^^^"*^'^. 

rate estate enforced in equity, 

15. Wife, having separate estate, 

may contract for purchase of 
estate, 

16. But the Court can proceed only 

against the property. 



1, It has been observed (a) that by the common law, re- 
stored by the case of Marshall v. Rutton (J), a married 
woman was not allowed, except in special cases, to contract 
as a feme sole, nor, as such, to sue or be sued. That being 
the legal rule, the wife cannot at law bind herself by any 
contract in regard to her separate property. In conformity 
with this doctrine of the wife's disability, courts of Equity 
have held that her general personal engagements will not 
affect her separate property, (c) 

2. This was so decided by Lord Rosslyn in the case of 
The Duke of Bolton v, Williams, {d) In that case the 



(a) Supra, p. 69. 

{b) 8 Term Rep. 547. 

(c) 2 Dick. 562. /^^.7/e^Ji. 



{d) 2 Yes. Jun. 138 : see 2 Dick. 
562. 



250 WHETHER WEFE'S OBNEKAL CONTRACTS 

wife granted annuities for value out of a rent-charge, 
being her separate estate. These grants were void from 
defects in the memorials, but the annuities were never- 
theless claimed by the annuitants and resisted by the wife. 
The owner of the land charged with the rent, not know- 
ing to whom to pay it, filed a bill of interpleader ; and 
one point insisted upon by the annuitants was, that if the 
grants were defeated by such omission as before stated, still 
they were intitled to be repaid their purchase-monies, with 
interest, out of the wife's separate estate. But it was held 
that the specific charges having failed, the annuitants be- 
came general creditors only of the wife for the purchase- 
money paid to her ; and then, upon the principle that there 
was no equity for her general creditors upon which they 
could maintain a suit to enforce an appropriation of her 
separate property in the hands of her trustees for payment 
of their demands, the Court decided against the claims of 
the annuitants. 

The remarks of Lord Eldon upon this case are these, 
"that it decided, in the most direct terms, that where a 
married woman, having separate property, has sold an 
annuity charged upon it, and the grantee has not taken care 
to make the charge available (for it was his business to do 
so), the person, whose grant as such fails, would not have 
an equity specifically to afiect the fund clothed with a trust 
for the separate use of the married woman with the con- 
sideration ; that Lord Rossljm considered the case in two 
points of view, at law and in equity, and said, if the an- 
nuitants had an action, there was no occasion for equity to 
interfere ; that if they had no action, there was no ground 
upon which a court of Equity could interfere." (a) 

3. The authority of Bolton v. Williams was followed by 
Lord Eldon, in the case of Jones v. Harris (6), from which 
the above extract is taken. There it appeared that A was 

(a) 9 Ves. 498. 94 : and Aguilar t?. Aguilar, 5 Mad. 

(b) Ibid. p. 486 : see also 3 Mad. 414. 



BINDING ON SEPARATE ESTATE. 251 

intitled to the rents of real estates to her separate use ; out 
of which she granted an annuity to B, but the grant was 
void from the insuflBlciency of the memorial. Upon the bill 
of B for payment of the annuity out of the rents, the wife's 
separate estate, the same point was insisted upon as in the 
case of the Duke of Bolton v. Williams, viz. that as at law 
upon an implied assumpsit the grantee could recover in an 
action his purchase-money, carrying the payments upon the 
annuity into account, so in equity B, being disappointed in 
the contract for the annuity, was intitled to be considered as 
A's creditor, and although B had no lien upon the rents by 
virtue of the contract itself, still A having separate estate 
was to be considered in equity as debtor in respect of it, 
upon the ground of the implied assumpsit^ and that the 
court would consider B, if to be regarded as A's general 
creditor, intitled to have the demand, due by virtue of that 
assumpsit (implied out of the failure of the contract), made 
good out of the rents and profits of A's separate estate. 
But Lord Eldon dismissed the bill upon the principle stated 
in the case of the Duke of Bolton v. Williams, and observed 
that there was great difficulty in raising the implied assumpsit 
to charge the separate estate, in opposition to the intention 
of both A and B, and to the authority of that case. B (said 
his Lordship) had no right to complain that the Court did 
not interfere upon such an application, merely to remedy 
negligence, and that if B had any complaint founded in 
moral justice, it was entirely B's own fault in not taking 
care to obtain a perfect security. 

4. These cases were cited by Sir L. Shadwell, V.C, in 
Murray v. Barlee (a) ; his Honour remarking that he would 
have followed their authority, if the case before him had 
turned upon the liability of the wife's separate estate to her 
implied contracts. 

5. However, Lord Brougham, C., when the case of Murray 

(a) 4 Sim. 82. 



252 



wife's bonds oe pbomissory notes 



V. Barlee came before him on appeal (a), expressed an opi- 
nion that there was no distinction between the wife's general 
engagements and her written instruments, and said that if 
there had been merely a general charge in that case he should 
have considered that the wife's creditor had a claim upon 
her separate estate* 

6. And in a late case (J), the liability of the wife's sepa- 
rate estate to her general contracts appears to have been 
considered by Lord Cottenham as settled. 

7. It is clear that bonds given by the wife will be a charge 
on her separate property. 

8. Thus, in Biscoe v. Kennedy (c), leasehold and other 
personal estate were on the marriage of B settled in trust 
for her separate use. She was indebted by bond at the time 
of her marriage, and her creditor filed a bill for payment of 
it out of her separate property ; and Sir Thomas Clarke 
declared that B's efiects vested in her trustees were to be 
considered as the property of a feme sole, and ordered the 
debt and costs to be paid out of 500^. East India stock, in 
the hands of her trustee, (d) 

9. So, in Hulme v. Tenant (^), upon the marriage of A, 
her freehold and leasehold estates were settled in trust that 
the trustees should receive and pay the rents and profits of 
parts of them to the wife, for her separate use, and to convey 
the estates themselves to such uses as she by will, or by deed 
or writing under her hand and seal executed in the presence 
of two witnesses, should appoint ; and in default of appoint- 



(a) 3 M. & K. 209 : see Callow v. 
Howie, 17 Law J. N. S. Chan. 71 ; 
11 Jur.489. 

(b) Lord V. Wightwick, 2 Ph. 
110 : see also Owens v. Dickinson, 
Cr. & P. 54 : and some remarks by 
Mr. Jacob on this subject in App. 
No. 11. 

(c) 1 Bro. C. C. 17, in notis. 

{d) In this case the creditor's bill 
was in the first instance dismissed. 



The husband afterwards absconded, 
and was outlawed, and the creditor 
then filed another bill for payment 
out of the wife's separate estate, 
which was decreed. 

{e) 1 Bro. C. C. 16; 2 Dick. 
660: see also Pybus i;. Smith, 1 
Ves. Jun. 189; 3 Bro. C. C. 340: 
Dillon r. Grace, 2 Sch. h Lef. Ch. 
Rep. 466 : and Standford r. Marshall, 
2 Atk. 69. 



CHAKGES ON SEPARATE ESTATE. 253 

meat, to the use of her heirs and assigns. The trustees 
were directed to sell the remainder of the estates, and out of 
the produce to invest lOOOi. according to A's directions, and 
the interest and profits were directed to be paid to her, and 
the principal to her or to her order, by note or writing under 
her hand, and for want of appointment, to her executors, &c 
A and her husband joined in a bond to B, and she afterwards 
borrowed of B a further sum, which, with the old debt, 
amounted to 180^., for which A gave her own bond. B filed 
a bill for payment out of A's separate estate, but the lOOOZ. 
were out of the question, that sum having been wholly or 
nearly disposed of. The only point was, how far the rents 
of the estates unsold, and the estates themselves, were liable 
to B's demand ; and Lord Thurlow made no decision upon 
the liability of the estates themselves, but declared and 
decreed that the rents of her real estates were liable to satisfy 
the debt. 

10. A similar decision was afterwards made in Heatley v. 
Thomas, (a) 

11. So, promissory notes given by the wife have been held 
to be a charge upon her separate estate. 

12. Thus, in BuUpin v. Clarke (J), upon the marriage of 
A with her husband B, several of her real estates were 
settled upon trust that the trustees should receive the rents 
and pay them to such person or persons, &c., as A at any 
time during her life, notwithstanding coverture, should 
appoint, and, in default of appointment, to pay them into 
"her proper lands for her sole and separate use." Her 
personal estate was also vested in the same trustees for her 
sole and separate use, and to be applied as she should direct. 
A borrowed 2501. upon her promissory note from C, who 
instituted the present suit to obtain payment of the debt 
out of A's separate property. And Sir W. Grant decreed 

(a) 15 Yes. 596. Sowle, 4 Buss. 112: and Nail v. 

(b) 17 Yes. 365 : see also Stuart Punter, 5 Sim. 562. 
V. Kirkwall> 3 Madd. 387 : Field v. 



254 CONTRACT CONCEBNING SBPABATE ESTATE. 

that the principal, interest, and costs should be paid by the 
trustees out of the rents and profits of the estates. 

13. Where the wife, who was living separate from her 
husband, promised her solicitors in writing to pay their bills, 
it was held that the letters had the same effect in charging 
her separate estate, as her bond or promissory note, (a) 

14. The wife being considered as a feme sole in respect of 
her separate property, her contracts for valuable considera- 
tion, with reference to such property, will in equity be 
enforced against her. (b) 

15. And where she has separate property, she can enter 
into a contract for the purchase of an estate as a feme 
sole, (c) 

16. But in all cases the Court must proceed against the 
property, as, although she may become intitled to property 
for her separate use, she is no more capable of contracting 
than before, (d) 

(a) Murray v, Barlee, 4 Sim. 82 ; {d) Aylett v. Ashton, 1 M. & C. 
affirmed by Lord Brougham, 3 M. & 105 : Francis v. Wigzell, 1 Madd. 
K. 209. 258. 

(b) Stead v. Nelson, 2 Beav. 245. 

(c) Dowling V, Macguire, 1 Rep. 
t. Plunkett, 1. 



SUITS IN EQUITY BY OR AGAINST WIFE. 



255 



SECTION IL 

OP THE WIFE'S SEPARATE CHARACTER IN EQUITY, IN REGARD 
TO PROCEEDINGS BY OR AGAINST HER. 



1 . Where plaintiff. 

2. Where defendant 

.3. Liable to answer personally for 
contempt of court. 



5. But an order must be previously 
obtained for her to answer 
separately. 



1. As at law the wife cannot sue or be sued without her 
husband being a party (a), so it is in equity ; this dis- 
tinction being observed, that when her suit is for her 
separate property, her husband should be made a defendant, 
and she alone be the complainant under the protection of her 
next friend, {b) 

% But when she is a defendant in a Court of Equity, the 
suit being to establish a claim upon her separate estate, she 
is so far considered as a single woman as to make it neces- 
sary to serve her personally with process in the cause, (c) 

3. Since the wife is liable only to the extent of her sepa- 
rate property in the hands of her trustees, a Court of Equity 
merely operates upon it and not against her personally {d) : 
but as she is clothed with the character of a feme sole in 
regard to such estate, and her husband is a mere formal 
party, and the Court cannot pronounce a decree to bind her 
separate property without her answer, &c., so that in- 
justice might result from allowing her an exemption from 
the process of contempt, it has been determined that she is 
personally answerable for contempts in not obeying the 



(a) Marshall v. Rutton, 8 Term 
Rep. 547. 

{b) Griffith v. Hood, 2 Ves. Sen. 
452. 



(c) 9 Ves. 488. 
(rf) 1 Bro. C. C. 20. 



256 ATTACHMENT AGAINST WIFE. 

orders of the Court, and may be committed to prison as any 
other person, 

4. Thus, in Bell v. Hyde (a), and Dubois v. Hole (6), the 
wife was committed to prison for not putting in an answer ; 
and in Stansbury v. Watkins, a case at the Rolls in the year 
1772 (c). Sir Thomas SeweU ordered an attachment to 
issue against the wife alone. 

5. But in Carleton v. M'Enzie (d), a wife executrix and 
residuary legatee answered the original bill jointly with her 
husband, the bill was amended, and her husband went 
abroad ; and Lord Eldon determined that in such a case, a 
previous order that the wife should answer separately was 
necessary to bring her into contempt for not answering the 
amended bill. 



(a) Pre. Ch. 330. (d) 10 Ves. 442 : see also Bun- 

(b) 2 Vera. 614, ed. by Raithby :- yan v. Mortimer, 6 Mad. 278 : and 
see Pannell v. Taylor, 1 Turn. & Hardy v. Sharpe, 3 Y. & C. Eq. Ex. 
Russ. 96. 377 : and Daniell's Chancery Prac- 

(c) Stated in noHsy 2 Vera. 614 : tice, 2d. ed. by Headlam, where the 
see also Ottway v. Wing, 12 Sim. subject of this section is fully dis- 
90, cussed. 



GIFT OF SEPARATE ESTATE TO HUSBAND. 



257 



CHAPTER V. 

OF THE WIFE'S ACTS REGARDING HER SEPARATE PROPERTY 
IN FAVOUR OF HER HUSBAND, AND THE EFFECT OF HER 
ACQUIESCENCE IN HIS RECEIPT OF IT. 



SECTION L 



OF THE WIFE'S POWER OF DISPOSING OF HER SEPARATE 
PROPERTY IN FAVOUR OF HER HUSBAND. 



1. Maiy dispose of separate estate 

to husband, 

2. But she must appear in court 

where suit. 



4. Presence of wife in court not rc- 
quired in general on disposi' 
tion of separate property. 



1. In transactions between husband and wife, relative to the 
separate estate of the latter, she, primd faciei will be viewed 
in the light of a feme sole, and as such be competent to dis- 
pose of it to him, or for his use, subject to proof of fraud or 
undue influence on his part, (a) To this effect Lord Hard- 
wicke expressed himself in Grigby v. Cox. (b) 

2. In Milnes v. Busk (c). Lord Rosslyn said that he had been 
informed it was very constantly the course of the Court, and 
particularly at the Rolls, where these causes usually came on, 
that where the trustees oblige the party to apply to the Court, 
it had not established a deed between husband and wife upon 
her separate estate without her actual presence in Court, (d) 
Upon this declaration of Lord Rosslyn, the Solicitor-General 



(a) See Essex v. Atkins, 14 Yes. (c) 2 Ves. Jun. 590. 
542. (rf) Upon this subject, see suprdj 

{b) 1 Ves. Sen. 518. vol. I. p. 246. 

VOL. n. S 



258 WHETHEE wife's PRESENCE IN COURT REQUIRED. 

observed, that Sir Thomas Sewell had said, that if trustees 
would not take upon themselves to act, but compel the 
parties to file a bill, they cast their discretion upon the Court, 
which would not act for them without the presence of the 
wife. It therefore seems that, when such transactions come 
before Courts of Equity, they will require the wife's presence, 
and, if necessary, direct inquiries into such transactions, to 
ascertain their fairness, and the circumstances under which 
the wife was induced to concur in then, (a) 

3. In Pybus v. Smith (J), Lord Thurlow observed, that it 
was very fit, in the case of a married woman, that the Court 
should know how she had disposed of her property. 

4. In general, however, the presence of the wife in Court, 
upon a disposition of her separate estate either to her husband 
or to strangers, is not necessary in order to pass her separate 
interest (c), since, as to such property, she has the same 
power of disposing of it as if she was a feme sole. 

(a) Parkes v. White, II Ves. 231. also Sturgis v. Corp, 13 Ves. 190 : 

(b) I Ves. Jun. 194. and Bean v. Sykes, 2 Hajes Convey. 

(c) See Lord Eldon's observations 640, 6th ed. 
in Sperling v. Rochfort, 8 Ves. 182 : 



WHERE mJSBAND PEBMITTED TO RECEIVE BENTS. 259 



SECTION 11. 

WHERE THE WIFE IS INTITLED TO REIMBURSEMENT OUT OF 
HER HUSBAND'S ESTATE FOR WHAT HE HAS RECEIVED OP 
HER SEPARATE PROPERTY. 



1. Not where she hoe permiHed 
husband io receive separate 
property. 

5. If consent not given or pre- 

sumedy iniided to reimburse^ 
ment of whole anumnt. 

6. Husband allowed sums ex- 

pended for wife lunatic. 



8. Wif^s claim to arrears where 

consent implied, 

9. Distinction betweefi pin-money 

and separate estate in this 
respect. 
10. fFif^s consent in court unne- 
cessary. 



1. Since the wife may appoint and dispose of her separate 
property as a feme sole, so she may give it to, or permit her 
husband to receive it, which will preclude her right after his 
death to charge his estate with what he so received. This 
was acknowledged by Lord Hardwicke in Pawlet v. Dela- 
val (a), in which case he decided, that Lady Pawlet having, 
during the joint lives of herself and husband, permitted him 
to call in, manage, and dispose of her separate estate as his own, 
and after his death treated by acts such her separate property 
as assets belonging to him, discharged the original limitation 
of it to her separate use, and gave it to her husband. 

2. In Smith v. Camelford (6), the Court declared, that if 
the wife permitted her husband to receive the rents of her 
separate estate, he was not afterwards accountable to her for 
them. A like decision was pronounced in Milnes v. Busk (c), 
the wife having expressly empowered her husband to receive 
the rents of her separate estate during her life. Powell v. 



(a) 2 Yes. Sen. 663. 

lb) 2 Ves. Jun. 698. 716. 



(c) 2 Ves. Jun. 488. 



s 2 



260 WIFE INTITLED TO REIMBURSEMENT 

Hankey (a) is a case where a similar decree was pronounced 
upon her permission and acquiescence in her husband re- 
ceiving the produce of her separate property ; and in Squire 
V. Dean (J), where the husband received the interest of his 
wife's separate estate, and applied it to the use of the family, 
her assent to the receipt and application was presumed, and 
she was not permitted to claim anything on account of it 
out of her husband's assets. 

3. On the presumption of the wife's assent, in the late case 
of Beresford v. Armagh (c), she was held not to be intitled to a 
balance of the rents of her separate estate which, at the time 
of her husband's death, was standing to his account in a bank. 

4. Upon the san^e principle, where the trustees under a 
marriage settlement had lent the wife's money to the husband 
with her consent, it was held, on the bankruptcy of the hus- 
band, that they could only prove for the principal, (d) 

5. But if no such consent be ^ven, nor can be* presumed^ 
then the wife will be intitled to reimbursement out of her 
husband's estate for the whole of what he received of her 
separate property, as in Parker v. Brooke, (e) 

6. Yet, in an instance where she was supported by him, 
and insane, and he received her separate estate, for which his 
own property was liable to answer (because his wife, so cir- 
cumstanced, could neither authorise nor consent to his taking 
her separate estate), still, in consideration of his maintaining 
her, he was allowed in discharge a proper sum for what he 
expended in her support. The instance alluded to occurred in 
the Attorney-General v. Pamther.(/) 



(a) 2 p. W. 82. (c) 9 Ves. 583. 

(b) 4 Bro. C. C. 326 : see Carter (/) 3 Bro. C. C. 441 ; 4 Bro. C. C. 
V. ADderson, 3 Sim. 370 : Bartlett v. 409 : but see Nettleship v. Nettle- 
Gillard, 3 Russ. 149 : and Leach v. ship, 10 Sim. 236 : and Edwards v. 
Way, 5 Law J. N. S. Chan. 100. Abrey, 2 Ph. 39 ; 2 C. P. Coop. (t. 

(c) 13 Sim. 643 ; 13 Law J. N. S. Cot) 177 ; 15 Law J. N. S. Chan. 
Chan. 235 ; 8 Jur. 262. 404 ; 10 Jur. 650. 

(d) Ex parte Green, re Ellis, 2 ; 
Deac. & Ch. 1 13 ; 1 1 Law J. Bank. 2. 



WHERE CONSENT NOT GIVEN NOB PRESUMED. 261 

7. It cannot escape the observation of the reader that the 
principle which pervades the cases upon the subject is this ; 
either express gift by the wife to her husband, or an implied 
gift to him (when it can be raised) of her separate estate, 
resulting from cohabitation and her acquiescence. 

8. Upon this presumption it is, that if the wife without 
intermediate claim suffer her husband to receive the annual 
income of her separate estate, a Court of Equity will permit 
her, surviving him, to charge his assets in account with no 
more than the amount of one year's arrears, or for one year 
of his receipts preceding his death, acccording to some cases, 
and even not with one year's receipts or arrears according 
to others. 

9. Mr. Roper remarks (a), " If, notwithstanding the dicta 
in some of the cases, a distinction may be considered to 
exidt between property settled to the wife's separate use 
aliunde^ and pin-money settled upon her by her husband, all 
or the majority of the cases may probably be reconciled. 

" Thus, if the wife expressly or impliedly authorise her 
husband to receive the interest or rents of her general sepa- 
rate property, during his life, this being a gift, there can be 
no reason to give her any part of them which accrued during 
his life. With this agree the before-mentioned cases of 
Smith V. Camelford, Powell v. Hankey, and Squire v. Dean ; 
and also Whistler v. Newman (6), and Dalbiac v. Dalbiac(c), 
after stated. But when the property settled is that of the 
husband or the wife, and he is under contract to pay to her 
annually a certain sum as pin-money, considered to be for her 
personal use, and a provision by him, in such a case as it may 
be detrimental to her to carry implied acquiescence on her 
part to the extent of excluding her claim to this provision up 
to her husband's death, it does not seem unreasonable that 
she should be allowed one year's arrears previous to that 



(a) 2 Rop. H. & W. 221 : see {b) 4 Ves. 146. 
chap. 8, post. (c) 16 Ves. 126. 

s 3 



262 wife's consent in coubt- 

period, and so the Court has considered in the cases referred 
to below, (a) " 

10, Mr. Roper further observes (6), that as the gift or 
acquiescence of the wife will intitle her husband to her 
separate estate, so will her consent, given and recorded in a 
Court of Equity, have the same effect. But, as Mr. Jacob 
remarks (c), " the wife's examination and consent is entirely 
unnecessary with reference to separate property, (d) Hence, 
in Sturgis v. Corp, the decree was made without the wife's 
consent being taken, referring it to the Master to settle 
an assignment, (e) And an assignment or appointment 
by the wife is the regular mode of passing her separate 
property; her consent in Court can be of no use, excepting 
that it may sometimes save the expense of a deed ; and the 
Court has therefore latterly, in some instances, declined 
taking the consent." 

(a) TowiKshend «. Windham, 2 (b) 2 Hop. H. & W. 222. 
Yes. Sen. 7: Peacock v. Monk, 2 (c) Ibid. 222 n. 
Ves. Sen. 190: Offley v. Offlej, Pre. (d) See 13 Ves. 192: 3 Madd. 

Ch. 26: see 11 Yes. 225; and 2 885. 
Madd. 286 n. («) Beg. Lib. B. 1806» fo. 108. 



BILL IN EQUITir OF HUSBAND AND WIFE. 263 



SECTION IIL 

WHETHER A BILL IN CHANCERY, FILED BY THE HUSBAND 
AND WIFE, WILL OPERATE AS A DISPOSITION OF THE FUND 
IN FAVOUR OF THE HUSBAND. 



2. Chuslyn t. Smith. 

3. Clarke y. Pistor. 

4. Remark* thereon, 
6. Alien ▼• Paptoarth, 



6. Mr. JacoVi remarks thereon, 
8. Court will not act upon bill of 
wife and husband, semble. 



1. In some cases where the wife was intitled to the interest 
of the fund for life to her separate use, with a prescribed 
power to dispose of it, and upon her death the capital 
was given to her husband, on their filing a bill in Chancery, 
praying that the principal might be immediately paid to 
her husband, and the wife consenting to part with her life 
estate, the Court has ordered the fund to be paid or trans- 
ferred to the husband. 

2. Thus, in Chesslyn v. Smith (a), A, by deed, reciting 
that he was desirous of making a provision for B, his wife, 
during her life, directed the trustees named in it to invest 
500Z. in three per cent, consols, in trust to pay the interest 
during A's life in such manner as B should appoint by any 
note or writing under her hand, and notwithstanding her 
then marriage ; but in default of such direction to pay the 
same into her hands for her sole and separate use; and 
after her death, if A survived her, upon trust for him, his 
executors and administrators; but if he died before her, 
then to pay the principal according to his appointment, and 
if he made none, then upon trust for himself, his executors, 
&c. The 500/. was invested by the trustees, against whom 

(a) 8 Ves. 183. 
s 4 



264 WHETHER BILL IN EQUITY OF HUSBAND AND WIPE 

A and B filed a bill, praying a transfer to A for his own use 
and benefit, upon his giving to the trustees his personal 
security. B consented, and Sir William Grant decreed ac* 
cording to the prayer of the bill. 

3. To the same effect is the case of Clarke v. Pistor (a), 
which was decided at the Rolls in the year 1778. There the 
trust was to pay the dividends of 2000Z. Bank Stock to such 
persons, &c., and in such manner and form as the wife 
should from time during her life, or notwithstanding her 
coverture, by any note or writing under her hand appoint, 
and in default of appointment into her proper hands for her 
separate use, &c., and after her death to transfer the capital 
to her husband. Upon the bill of the husband and wife 
against the trustees, the wife having made no appointment^ 
the Court, with her consent, ordered a transfer of the fund. 

4. The limitations in these cases, as the reader will have 
observed, amounted to nothing more than a trust for the 
wife's separate use for life, and she having, as incident 
to such an estate, a power of disposing of it ad libitum^ such 
power superseded the special mode prescribed, a compliance 
with which, in specie^ must have been considered by the 
Court as unnecessary, (b) 

5. In Allen v. Papworth (c). Lord Hardwicke held, that 
if a married woman, having power to receive the profits of 
an estate to her separate use, and to appoint them as she 
pleaded, filed a bill jointly with her husband for an account, 
and submitted that the profits should be applied in payment 
of his debts, and for which a decree was pronounced, such a 
bill, to which she was made a party without collusion, was 
as much an execution of her power as an actual appoint- 
ment would have been, and the profits would be bound by 
the decree. 

6. Upon this case Mr. Jacob observes (d)^ " It does not 

(a) Cited 3 Bro. C. C. 568 : and (ft) See ante, p. 246. 
Gullan V. Trimbey, 2 Jac. & Walk. (c) 1 Ves. Sen. 163. 
457 n. id) 2 Rop. H. & W. 226 «. 



WILL BE A DISPOSITION OP FUND. 265 

appear that the wife consented to the decree. See Belt's 
Supplement (a), where the substance of the pleadings is 
stated from the Registrar's Book, but it is difficult to collect 
from them what was the point decided. The opinion at- 
tributed to Lord Hardwicke, that the bill might operate as 
an appointment, is (to say the least) very questionable, a 
bill filed by a husband and wife jointly being in effect the 
bill of the former, (b) And though a power has been held 
to be executed by a declaration contained in an answer in 
Chancery (c), it does not follow that the same efiect is to be 
ascribed to the contents of a bill, which may be altered by 
amendment. In this case a decree had been pronounced, 
and therefore it did not rest upon the bill alone." 

7. Since the above observations, the case of Simons v. 
Horwood(d) has occurred, where the wife being intitled 
under a will to a fund, in terms which gave it absolutely to 
her separate use, the husband and wife filed a bill against 
the trustee, praying for a transfer of the fund to the wife, or 
to the husband in her right ; but Lord Langdale, M. K., 
said that it was the husband's suit, and the wife, for all the 
purposes of the suit, must be taken to be entirely under the 
influence of the husband. The husband, therefore, could 
not obtain it in that suit. 

8. It may therefore be considered as settled, that whether 
the wife's interest is such as she may dispose of inde- 
pendently of any special power, or she has merely a power 
to dispose of it, the Court will not act upon a bill filed by 
her and her husband. 



(a) Page 88. (c) Carter v. Carter, Mose. 369. 

{b) See 2 Ves. Sen. 452. 666 : 1 («0 1 Keen, 7. 
Sim. & Stu. 188. 



266 



WHEBE WIFE BELIEVED AGAINST 



CHAPTER VL 

WHERE THE WIFE IS INTITLED TO ILELIEF IN EQUITY AGAINST 
DISPOSITIONS OF HER SEPARATE ESTATE, 



2 "I Instances of wife not being re- 
A* > Ueved ctgainst her separate 

J contracts. 
4« Sale to her trustee where sup' 
ported. 



6. Parhes v. White. 

7. Scott T. Davis : sale to trustee 

set aside. 
9. Effect ofwif^s acquiescence. 



1. It has been before shown that a married woman is to 
be considered a feme sole in relation to her separate estate, 
and that she has power as such to give away or otherwise 
dispose of it. It follows from this proposition, that her 
equity for relief against gifts or dispositions of her separate 
property must be the same as that which is sufficient to 
defeat similar acts amongst persons in general ; such as 
fraud, surprise, undue influence, &c. (a) 

2, In Grigby v. Cox (5), it was holden that the wife's 
concurrence with her husband in a sale of her separate 
estate, and without the joining of her trustees, could not be 
impeached, there being no evidence of imposition or undue 
influence. For as the wife might have appointed the 
property to her husband, his being a party with her in a 
sale to a stranger could not vitiate the transaction. In 
that case the husband covenanted that the estate was free 



(a) When a married woman seeks 
to be relieved against a sale of a re- 
versionary interest in property given 
for her separate use, on the ground 
of inadequacy of consideration, the 
question depends on principles si- 



milar to those applied to other sales 
of expectant rights ; on which sub- 
ject see the cases collected in Ap- 
pendix No. 4. 

{h) 1 Ves. Sen, 517 : see also 
Essex V. Atkins, 14 Yes. 542. 



DISPOSITIONS OF HBE SEPAEATB ESTATE, 267 

from incumbrances; and Lord Hardwicke said that such 
circumstance made no difference, since the demand of such 
a covenant from him was but a reasonable request and 
precaution against a prior secret appointment of the wife, 
and that the husband alone was the person answerable for 
a breach of it. 

3. So also in Masters v. FuUer (a), A (the wife of B, who 
had agreed to take a house of C at the rent of 201.) having 
separate property, entered into an agreement without her 
husband's knowledge, to pay C an additional rent of 18Z. for 
the house, in consideration of its being differently fitted up, 
and which she paid up to her death. A appointed her 
husband B executor of her will, who filed his bill to be 
relieved against this agreement of A, charging it to have 
been a fraud upon A, and obtained by improper means ; but 
which C denied in his answer, and stated that the house 
was fitted up by A's direction, and according to her fiuicy, 
and that both rents formed but a moderate rent in the 
whole for it. The counsel for B contended that the agree- 
ment being concealed from B was a fraud upon him as A's 
husband, and also upon him as standing in A's place, who 
would have been relieved against the contra<it if she had 
been living. But the Lords Commissioners of the Great 
Seal thinking otherwise, dismissed the bill, without hearing 
C's defence. 

4. The two following cases seem to establish (notwith- 
standing the suspicion which attaches to purchasers by 
trustees fr^m their cestuique trusts (6)), that if the wife sell 
her separate estate to her trustee, and the transaction be 
bandjide and for a proper consideration, the disposition will 
be valid. 

5. Li Davidson v. Gardner (c), the wife being intitled to 

(a) 4 Bro. C- C. 19. (c) Stated in 1 Sug. V. &P. 230, 

lb) Coles V. Trecothick, 9 Yes. lOth ed. 
234 3 Randall v. Errington, 10 Ves. 
423, 



268 SALE BY WIFE TO HEE TRUSTEE. 

a brewhouse to her separate use, vested in a trustee for her, 
sold it to him for its full value, and no fraud appeared in 
the transaction. To set aside this sale, the wife filed her 
bill, but it was dismissed by Lord Hardwicke. 

6. In Parkes v. White (a), the real estates of Mr. Parkes 
were limited by settlement to White and his heirs to the 
use of Mrs. Parkes for life, and to preserve contingent 
remainders in the usual manner, but in trust to permit her 
to receive the rents for her separate use for life, remainder 
to such persons, &c. as she, notwithstanding her coverture, 
by will, or any writing purporting to be her will, should 
appoint; and in default of appointment, to the use of an 
only child absolutely, but if more than one, in trust to sell 
the premises, and divide the proceeds amongst them, as 
therein mentioned, with the ultimate limitation, if no issue, 
to her right heirs. By deeds in May, 1779, Mrs. Parkes and 
her trustee mortgaged her life estate to A for a debt of her 
husband ; and by other deeds in May, 1785, reciting untruly 
that she and her husband were intitled to sell the trust estate, 
White and the legal personal representative of A, the mort- 
gagee, in consideration of the discharge of the mortgage and 
of 800Z. paid to Mrs. Parkes and her husband (in the whole 
lOOOZ.), and at their request and by their direction (who 
agreed to levy a fine which was afterwards levied) conveyed 
to Evans, the heir of A, the premises in fee. Mrs. Parkes, 
in order to complete the title of Evans under her power, 
made a will, appointing him executor, and devised to him the 
inheritance of the estate ; and for the purpose of preventing 
any revocation of such will and a new appointment, the 
husband gave to Evans a bond with a condition to that effect. 
In August, 1785, White, the trustee, bought the premises of 
Evans for lOOOZ.; and in 1793 he sold them to Quarman 
for 1500/., to whom he gave a bond of indemnity against 
Mrs. Parkes and her husband. In April, 1799, Mr. and 

(a) llVe«.209. 



SALE BY WIFE TO HER TRUSTEE. 269 

Mrs. Parkes executed another instrument, by which, after 
acknowledging their receipt from White, the trustee, of 200L 
stated by him to be the diflFerence of price between Evans's 
purchase in 1785 and that of Quarman in 1793, after 
deductions, &c., and that Mrs. Parkes had made a will in 
favour of Quarman, they engaged that she should not 
execfute another will, nor do any act to molest Quarman, 
his heirs, &c. At the time of White's purchase, the net 
rent of the estate was 50/. Mrs. Parkes endeavoured to set 
aside these transactions upon the grounds of her not having 
received a valuable consideration, and of her being under 
the control and influence of her husband and White ; her 
bill charging that White had attempted to make undue 
advantages by taking a conveyance of the trust estate from 
her ; and that Quarman had notice of the settlement, and 
took a bond of indemnity from White, which notice and 
bond he admitted in his answer, but claimed the benefit of 
the purchase as made without fraud, or at least to be 
allowed the rents received on account of his purchase- 
money and interest, and to stand as a mortgagee for the 
residue to the full amount of the principal and interest of 
all monies White, the trustee, might have advanced for the 
the use or by the direction of the wife. The objects of the 
suit were, first, to subject the legal estate in the settled 
property in Quarman to the settlement uses, at least sub- 
sequent to the trust for the wife's separate use; and 
secondly, for a declaration as to her interest (notwith* 
standing her acts and the remote periods when they were 
done) that White and Quarman were trustees of the rent 
during the whole time for her separate use. But as to the 
wife's separate trust estate for life, let in by levying the 
fine, Lord Eldon decreed that Quarman was intitled to it 
on the principle of the wife's right to dispose of it as a feme 
sole; and that White being a mere trustee to preserve 
contingent remainders, and to pay the rents to the wife's 
separate use, was not such a trustee to whom the doctrine 



270 SALE BY WIFE TO HBB TRUSTEE. 

of the Court, in regard to trustees buying trust property, 
applied, (a) But that as to the limitations in the settlement 
to the general appointment of the wife after her death by 
will, and in default of any to her children, his Lordship 
heldy» that they were not affected by the transactions, since 
White being a trustee to protect the ambulatory appoint- 
ment of the wife and the interests of her children, the 
transactions could not be supported in breach of those 
duties, and from what appeared on the £itce of the in- 
struments. (J) The wills, therefore, were ordered to be 
delivered up; and Quarman was directed to convey the 
premises to new trustees to his own use, during the wife's 
life, with remainder upon the trusts of the settlement, 
except as to the ultimate reversion, which was to be limited 
to himself in fee. This ultimate reversion, the reader will 
have observed, belonged to the wife; and it is presumed 
that it was excepted in favour of Quarman from the effect 
of the fine which was levied. 

7. In a late case (c), however, a sale from the wife to her 
trustee under very similar circumstances was altogether set 
aside. There a sum of long annuities had been bequeathed 
to trustees upon trust for the separate use of the wife during 
her life, and after her death, upon trust for such persons as 
she should by will appoint ; and in default, upon trust for the 
next of kin of the testator. One of the trustees having 
contracted for the purchase of the wife's interest, a deed was 
executed whereby the husband and wife absolutely assigned 
to the trustee their interest in the long annuities. The deed 
then assumed the form of a will, by which the wife appointed 
the long annuities absolutely to the trustee. The deed con- 
tained a covenant from the husband and wife for quiet en- 
joyment and for further assurance. It was held that the 
transaction could not be supported against the wife : Lord 
Cottenham, C, in giving judgment, said that, assuming that 

(a) 1 1 Ves. 226. (c) Scott v. Davis, 4 M. & C. 

lb) 11 Ves. 23 1.235. »7. 



SALE BY WIFE TO HER TEtTSTBE. 271 

the wife might be considered as a feme sole as to her life es- 
tate in the income arising from the long annuities, she could 
only be so considered as to so much of the annuities as might 
be payable after her death to the extent of the power given to 
her of disposing of them by wUl, revocable at her pleasure 
up to the moment of her death. But the attempt had been 
to enable her to sell this remaining interest in her life-time, 
and so to use the power given to her by her father's will as 
to deprive her of the benefit he intended to secure to her. 
Had that been the only circumstance in the case, he should 
have felt no difficulty in acting upon it in the absence of 
authority ; but in addition to this, it appeared that all this 
was done to effect a purchase by the trustee himself at a 
price admitted to be considerably under the market price of 
the day ; and assuming, which however it was impossible to 
estimate, that this diminution of price was not more than 
fairly attributable to the infirmity of the title, it was an 
actual loss of so much to the married woman. Thet es- X^ . , , 
tator's provisions to secure to his daughter the enjoyment 
of the whole became, by the act of the trustee, whose duty 
it was to protect her in such enjoyment, the ground of a 
sacrifice of a considerable part. The case of Parkes v. 
White, which was not quoted in the argument, was very 
similar to the present, and many of the observations of Lord 
Eldon in that case might be adopted in deciding it. There, 
indeed, the sale of the life estate was supported, because it 
was a perfectly distinct transaction, but here the whole con- 
stituted but one transaction and could not be separated. 

8. Where a creditor of the husband procured himself 
to be appointed a trustee of the wife's separate estate, and 
then prevailed with her to execute a deed providing for pay- 
ment of the interest and principal of the debt out of her 
separate property vested in him as her trustee, the Court 
under such circumstances set aside the transaction. 

The case alluded to is Dalbiac v. Dalbiac. (a) There a sum 

(a) 16Ve8.116. 



/ 



272 SALE BY WIFE TO HEB TRUSTEE- 

of 65Z. long annuities, the separate estate of A, the wife of 6, 
was vested in the executors of her surviving trustee. In 
May, 1796, B and his uncle D procured A to join with him, 
B, in a bond to D, for B's debt. The executors refused to pay 
the interest out of A's estate, and D, the creditor, and E were 
appointed new trustees under a decree obtained for the 
purpose, and the annuities were transferred into their names. 
Immediately after this transfer, D, without consulting E, his 
co-trustee, prevailed upon A to execute a deed, declaring that 
the new trustees should be possessed of the annuities upon trust 
to apply them in payment of the interest of the debt, from 
March preceding the date of the bond, and the surplus to A 
for life, and after her death to discharge the principal out of 
the capital fund, which was limited to the wife absolutely in 
the event of her leaving no child. B the husband being 
dead, A filed a bill to be relieved against the above securities, 
and for a transfer of the annuities to herself, there being no 
child ; also for payment of the amount of D's receipts since 
he became a trustee. D insisted upon the fairness of the 
transaction, but acknowledged that his consent to become a 
trustee was with the design of repajang to himself his debt 
more readily out of A's separate estate. E the co-trustee 
did not sign the deed. Sir William Grant decreed the 
securities to be delivered up, because D imposed upon the 
Court in suppressing his debt for the purpose of being 
appointed a trustee in order to obtain dominion over the 
fund, and with it to pay his own debt ; that D, therefore, 
was precluded from setting up such demand against A, and 
could not be allowed the benefit of the deed obtained under 
the above circumstances. With respect to D's receipts, his 
Honour decreed that an account could not be taken farther 
back than from the husband's death, as he and his wife lived 
together ; and that since she, during his life, would not be 
intitled to an account against his representative, she was 
equally precluded against his creditor and assignee, (a) 

(a) See ante, p. 261., et seq. 



EiTECT OF WIFE*S ACQUIESCENCE. 273 

9, If, however, the wife, with full knowledge of her rights, 
acquiesce for a length of time in dispositions of her separate 
property, against which she might originally have obtained 
redress, the Court will not relieve her. (a) This appears 
from Lord Hardwicke's clear and elaborate judgment in 
Pawlet V. Delaval (6), in which case his Lordship decided 
that Lady Pawlet was concluded by her acts and acquiescence 
in constituting her separate estate part of the assets of Lord 
Pawlet, her first husband; and he emphatically observed, 
that facts and acquiescence were material to determine great 
rights and properties. 

(a) Campbell v. Walker, 5 Ves. (b) 2 Vea. Sen. 668. On this sub- 
678. jeet, see ante, p. 259. et seq. 



VOL. n. 



274 



BY WHAT WORDS ANTICIPATION 



CHAPTER VII. 

OF RESTRAINT UPON THE WIFE'S POWER OF DISPOSING OF 
HER SEPARATE PROPERTY BY ANTICIPATION. 



1. Restrictions upon anticipation 

valid, 
3. Bitt alienation not prevented by 

direction to pay fund *^from 

time to time " to her^ or " into 

her proper hands/* 

6. Anticipation not restrained 

where intention only inferred. 

7. Hovey t. Blaheman, 

8. Mr. Ropei^s remarhs thereon. 

9. *^ Receipts of wife alone to he 

sufficient discharges/* 
10. Receipts after fund ^ shall be* 

come due.** 
11." Not to be sold or mortgaged.** 

12. Whether^ where power and gift 

in defatdt of appointment, prO' 
hibition must extend both to 
power and gift. . 

13. Barrymore v. EUis, 

14. Broum v. Bamford. 



16. Harnett y. MacdougaU. 

17. Moore v. Moore. 

18. Baggett v. Meux. 

19. Medley y. Horton. 

20. Form of proviso to prevent an^ 

ticipation. 

22. Proviso in restraint of antici-' 

potion only effectual during 
coverture. 

23. Accordingly wifcy when discovert, 

may alien. 

24. Jfshe has not aliened when di^- 

covert, proviso comes into ope'- 
ration on marriage. 

25. TuUett y. Armstrong. 

26. Rule laid down by Lord Lang^ 

dale. 
2*1. By Lord Cottenham. 
28. But anticipation may be re^ 

strained during particular cO' 

verture only. 



\. Whether the wife's power of alienating her separate 
property could be restrained even by express negative words, 
appears to have been originally doubted, upon the ground of 
such a restriction being repugnant to the interest which the 
wife took in the property. However, in Miss Watson*s set- 
tlement, in which Lord Thurlow was a trustee, the words 
" and not by anticipation " were by his advice inserted, (a) 
The clause was afterwards considered by Lord Alvanley {b) 

(a) See Parkes v. White, 1 1 Ves. (b) In Sockett v. Wray, 4 B. C. C. 
221: and Jackson v. Hobhouse, 483. 
2 Mer. 487. 



WILL BE BESTRAINED. 275 

to be a valid one, and it was so held by Lord Eldon in the 
case of Jackson v. Hobhouse. (a) 

2« In that case 60002. was vested in trustees to permit the 
wife to receive the interest for life to her separate use, &c., 
with a proviso against her assigning or otherwise disposing 
of such interest in any mode of anticipation. The husband 
and wife assigned the interest to secure an annuity to B, in 
which C joined as a surety. C, having been obliged to pay 
some arrears of the annuity, filed a bill against the trustees 
for reimbursement out of the wife's separate interest, and for 
the application of the residue in paying C's annuity in future, 
and for an injunction to restrain the trustees from disposing 
of the 6000/. and interest. This injunction having been 
obtained, Lord Eldon, upon a motion to dissolve it, said it 
was too late to contend against the validity of a clause in 
restraint of anticipation, and he dissolved the injunction. 
His Lordship also expressed an opinion that if the wife had 
been guilty of fraud by concealing the clause of restraint, 
the circumstance could not have improved the situation of 
the surety in enabling the wife to dispose of her separate 
interest contrary to the express declaration of the settlor. 

3. But a direction that the interest shall be paid from time 
to time into the proper hands of the wife, is insufficient to 
prevent her having an absolute disposing power over the 
income, before the arrival of the periods for her own proper 
receipts of it- In Parkes v. White (5), Lord Eldon con- 
sidered it to be settled by the authorities, that all the words 
usually found in limitations to the separate use of married 
women, as to pay the interest or rents into their own hands, 
and from time to time, &c., amounted to no more than gifts 
to their separate use, leaving them at full liberty to dispose 
of the income as they pleased. 

(o) 2 Meriv. 483. The law of nie» 9 Jur. 435 ; Rennie r. Ritchie, 
Scotland recognises to a certain ex- 12 CI. & F. 204. 
tent the separate use and restraint (b) 11 Yes. 2J2. 
against anticipation, Ritchie v. Ren- 

T 2 



276 ANTICIPATION MUST BE 

4. So, in Clarke v. Pistor (a), decided at the Rolls in the year 
1778, the trust was "to pay the dividends of 2000?. bank 
stock to such persons, &c. and in such manner and form as 
the wife should from time to time during her life, notwith- 
standing her coverture, by any note or writing under her 
hand appoint, and in default of appointment, into her proper 
hands for her separate use," &c., and after her death to 
transfer the capital to her husband. Upon the bill of the 
husband and wife against the trustees, she having made no 
appointment, the Court, with her consent, ordered a transfer 
of the fund. 

6. This was the case of a voluntary gift by the wife ; but 
several of the decisions arose upon questions between her and 
her creditors, and they uniformly support her absolute right 
of alienation, notwithstanding the occurrence of the words 
" from time to time " in the direction of payment of the inte- 
rest to her. These cases are Pybus v. Smith (6), Witts v. 
Dawkins (c), and Brown v. Like, (d) 

6. Indeed, the doubt which at first prevailed as to the 
validity of express declaration that the wife should not dis- 
pose of her separate interest by anticipation, affords strong 
evidence that nothing less will have that effect. 

7. There is, however, a case (e) which imports a contrary 
doctrine, and that mere inference of an intention will be 
sufficient to restrain the wife's power of disposition incident 
to her separate estate. It therefore requires particular at- 
tention. The question in that case arose upon a petition, 
and for that reason may not have been so fully considered 
as if it had been discussed upon a bill. The trust was, " to 
pay the rents and profits, dividends and interest, to arise 
from the fourth part of a residue, in equal divisions, into the 
proper hands of the testator's two sisters for their lives to 

(a) Stated 3 Bro. C. C. 568. W H Ves. 302: See Glyn v. 

(6) 1 Ves. Jun. 189 ; 3 Bro. C. C. Baater, 1 You. & Jcr. Eq. Ex. 329i. 
340. (e) Hovey v. Blakeman, 9 Vea, 

(c) 12 Ves. 501. 524. 



SZPBESSLY RESTBAINED. 277 

their separate uses/' Sir William Grant thought that this 
amounted to a personal bequest to them, to be paid into 
their respective proper hands, and without a power of dispo- 
sition, and that an absolute property was not intended to be 
given to them so as to impart such a power of disposition. 

&• Mr. Roper observes upon this case (a), " The limi- 
tation was sufficient to vest separate estates in the sisters to 
which the law, without regard to any intention of the settlor, 
amiexed the jus disponendi. There is nothing particular in 
the trust, it even wants the words ' from time to time,' and 
merely directs payment of the rents, &c., into the proper 
hands of the sisters. Such also were the trusts in Clarke v. 
Pistor, Witts v. Dawkins, and Brown v. Like ; yet in those 
cases it was held that such a direction did not deprive the 
married women of their equitable rights of disposition. In 
truth, the direction of payment into the hands of married 
women for their separate uses is the old method of making 
such a settlement, and to use Lord Eldon's language in 
Parkes v. White (6), * these words are only an unfolding of 
all that is meant in a gift to the separate use ' of the wife. 
And with respect to the settlor's intention, it has been before 
observed that mere inference of it is insufficient to take away 
the general power of married women to dispose of their 
separate property, but that express declaration to that effect 
is required. That such is the rule was admitted by Lord 
Eldon in the above case of Jackson v. Hobhouse, although its 
effect might be *to defeat the intention with which the 
power was given/ Considering, then, this case to be in oppo- 
sition to those preceding authorities, and even to the sub- 
sequent opinions of Sir William Grant, inferred from his 
decisions in the more modem cases of Witts v. Dawkins, 
Brown v. Like, and in Sturgis v. Corp (c), it is presumed 
that Hovey v. Blakeman is a case which would have been 

(a) 2 Rop. H. h W. 233. (c) 13 Ves. 190. 

(b) 11 Ves. 222. 

T 3 



1 



278 WHEBE FOWEB, AND QIFT 

differently decided had the question come before the same 
judge with more solemnity/' 

9. In the case of Acton v. White (a), the trust was for the 
sole and separate use of the wife for life, so as not to be 
subject to the debts, control, or engagements of her husband ; 
the trustees were to pay the dividends, interest, and annual 
produce, as the same should become due and payable^ 
into the hands of the wife, and not otherwise, and the 
receipts of the wife alone for what should be actually paid 
into her own proper hands to be sufficient discharges. It 
was decided that these expressions did not restrain her 
from disposing of her life interest. 

10. But in the late case of Field v. Evans (J), where the 
trustees were directed, during the wife's life, to receive the 
income of the property, when and as often as the same should 
become due ; and to pay it to such person or persons as she 
might from time to time appoint, or otherwise to permit her 
to receive it for her separate use ; and it was declared that 
her receipts, or the receipt of any person or persons to whom 
she might appoint the same after it should became due^ should 
be valid discharges for it, it was held that she was restrained 
from anticipation. 

1 1 . The wife will of course be restrained from alienation by 
a gift to her separate use, " not to be sold or mortgaged'* (c) 

12. It has been held by Sir L. Shadwell, V. C. E., that 
where the wife has a power of appointment over the fund, 
and there is a gift to her in default of appointibent, the pro- 

.hibition, in order to prevent anticipation, must expressly 
extend both to the power and to the gift in default of ap« 
pointment. 

13. This was decided in Barrymore v. Ellis, {d) There 



(a) 1 Sim. & Stu. 429 : see also (c) Steadman v. Poole, 6 Hare» 
Medley v. Horton, 14 Sim. 222 ; 13 193 ; 16 Law J. N. S. Chan. 348 ; 



Law J. N. S. Chan. 442 ; 8 Jur. 853. 1 1 Jur. 449. 
949. (rf) 8 Sim. 1. 

{b) 15 Sim. 375. 



IN DSFAULT OF APPOINTHBNT. 279 

a fund was vested in trustees, in trust, during the joint lives of 
the husband and wife, to pay the annuity, as the same should 
become due and payable, to such person or persons, and for 
such intents and purposes as the wife should by any writing 
signed with her own name in her own handwriting, notwith- 
standing her said coverture, direct or ap]X)int, but not so as 
to deprive herself of the benefit thereof by sale or other 
anticipation; and for want of such direction or appoint- 
ment, to pay the same to her for her own sole, separate, and 
peculiar use and benefit. Sir L. Shadwell held that the 
restriction against anticipation applied only to the power, 
and that, accordingly, an assignment by the wife of the fund 
was valid. His Honour said that it was a grant to such person 
or persons as the wife should in a given manner appoint, and 
subject thereto, to her sole use generally ; and if so, that it 
was competent to her to dispose of the annuity without ex- 
ecuting the power. The deed did not say, ^^ Do and shall 
pay the same into her own hands, &c.," but simply " to her 
for her own sole use." Then, was that different from a limi- 
tation to such uses as A should in a certain manner appoint, 
and subject thereto, to A generally ? 

14. In the subsequent case of Brown v. Bamford (a), the 
same construction was given by his Honour to a similar 
limitation in a will. There a testator gave leaseholds and stock 
to trustees, upon trust, during the life of his daughter S. B., or 
until she should be a bankrupt or insolvent, to pay the income 
to such person or persons, for such intents and purposes, and 
in such manner as S. B. by any writing or writings under 
her hand, when and as the same should become due, but not 
by way of assignment, charge, or other anticipation thereof; 
should, notwithstanding her then present or any future co* 
verture, direct or appoint, and in default of any such direction 
or appointment, or so far as the same, if incomplete, should 

(a) 11 Sim. 127; 12 Sim. 616; ford wiU be found in The Jurist, 
6 Jur. 451. Some observations vol. 8. pt. 2. pp. 110. 158. 253. 
open the doctrine of Brown v, Bom- 

T 4 



280 WHERE POWEB, AND GIFT 

not extend, into her proper hands, for her sole and separate 
use, independent of the debts, control, or interference of her 
then present or any future husband, for which purpose the 
testator thereby directed that the receipts in writing under 
the hand of his daughter S. B. should, notwithstanding any 
such coverture as aforesaid, be good and sufficient discharges 
for the last-men tioned rents, dividends, and proceeds, or so much 
thereof as should in such receipts respectively be expressed 
to have been received. Sir L. Shadwell, V. C. E., said that 
the words on which the question arose in this case, were the 
same in substance as the words in Barrymore v. Ellis, and 
that he adhered to his decision in that case, and remarked 
that there were no negative words in the receipt clause, and 
therefore there was nothing to restrict the power which 
Mrs. Bamford had to dispose of or charge the rents and divi- 
dends of the trust property under the general direction to 
pay those rents and dividends to her for her separate use. 

On appeal. Lord Lyndhurst, C, at first took the same view 
of the case as his Honour had done. However, upon the 
case being reargued, his Lordship reversed the decision (a), 
remarking that the daughter, S. B., was not allowed, by 
means of any assignment, charge, or any other anticipation, 
to direct the payment or the application of the rents, &c., by 
the trustees. But any assignment, charge, or other antici* 
pation, if eflPectual, would operate as a direction, and this was 
evidently so considered by the testator or other person who 
framed the clause ; the eflfect, therefore, of the prohibition 
was to restrain S. B. from assigning, charging, or in any 
manner anticipating the income, or exercising any dominion 
or control over her life estate, unless in the form and under 
the restriction contained in the power of appointment. She 
was precluded from assigning, charging, or in any manner 
anticipating the rents or other income, but she was permitted, 
when and as they became due, and not before, to direct the 

(a) 1 Ph. 621 ; 15 Law J. N. S. Chan. 361 ; 10 Jur. 447. 



IN DEFAULT OF APPOINTMENT. 281 

application of them, and in default of any such direction, 
they were to be paid into her own hands. The principle 
of Barrymore v. Ellis had no application to this case, the 
restriction against anticipation here extending to the whole 

gift. 

16. The principle upon which Barrymore v. Ellis was decided 
does not seem to have met with the approbation of other 
judges, although they have not directly denied it to be an 
authority. 

16. Thus, in Harnett v. Macdougall (a), a fund was by a 
marriage settlement vested in trustees, in trust during the 
life of the wife to pay the dividends to such person or persons, 
and for such intents and purposes, as she by any writing 
under her hand, should, notwithstanding her coverture, from 
time to time, when and as the same should become due, but 
not by way of assignment, charge, or other anticipation 
thereof, direct or appoint, and until and in default of such 
direction or appointment, into her own proper hands, for her 
own sole and separate benefit, free from the debts, control, or 
interference of her husband, for which purpose it was declared 
that the receipts in writing of the wife, or of such appointee 
as aforesaid, should, notwithstanding her coverture, be good 
and effectual discharges for the same dividends. The wife, 
who had become indebted, executed a deed purporting to 
charge the dividends of the fund. But Lord Langdale, M. R., 
refused to give effect to the charge, remarking that to do so 
would be to act in direct contradiction to the plain intention 
and language of the settlement, which distinctly expressed 
that the appointment should not be by way of assignment, 
charge, or other anticipation. 

17. In Moore v. Moore (&), a fund was vested in trustees, 
upon trust, during the joint lives of the husband and wife, to 
pay the interest and dividends to such persons as the wife 



(a) 8 Beav. 187 ; 14 Law J. N. S. (b) 1 ColL 54 ; 13 Law J. N. S. 
Chan. 173. Chan. 124 ; 8 Jur. 139. 



282 ABSOLUTE GIFT WITH SUBSEQUENT PEOHIBITION. 

should by writing, except in any mode of anticipation, direct 
or appoint, or in default of such direction or appointment, 
into her own hands, for her separate use. Sir J. L. K. Bruce, 
V. C, distinguished the case from those of Banymore v. Ellis 
and Brown v. Bamford, and held that the construction of the 
deed was, that, until appointment by the wife, the interest 
should be paid only in the wife's own hands, and she was 
not to .p^mt «.^« to «aign „. encumber the proper^ 
prospectively ; the effect of which was to restrain her from 
anticipation altogether. 

18. In Baggett v. Meux (a), where a testator devised a 
freehold estate to his daughter A. B., the wife of W. B., in fee, 
and gave the residue of his estate to trustees upon trust for 
sale and division among his five children (including A. B.), 
the shares of the daughters to be for their separate use ; and 
then proceeded as follows; "and I hereby declare that 
neither of my said daughters shall sell, charge, mortgage, or 
encumber the estates or property by me given, devised, and 
bequeathed to them, and that my daughters shall have, 
receive, and take such estates and property, each of them, for 
their own sole and separate and respective use and benefit 
and disposal, and have the sole management thereof, indepen- 
dent of their husbands for the time being, &c.,'' it was held by 
Sir J. L. K. Bruce, V. C, that the prohibition agiunst aliena- 
tion was to be taken in connection with the provision for the 
separate use, without regard to the order of precedence. 
The ^*ife accordingly took the estate for her separate use, 
without power of alienation. This decision has been since 
affirmed by Lord Lyndhurst, C. (b) 

19. The case of Medley v. Horton (c), which was decided 
before Baggett v. Meux, does not seem to be consistent with 
that case, and must be considered as overruled by it. 

(a) 1 Coll. 138 ; 13 Law J. N. S. (c) 14 Sim. 222 ; 13 Law J. N. S. 
Chan. 228 ; 8 Jur. 391. Chan. 442 ; 8 Jur. 853. 949. 

(b) 1 Ph. 627 ; 15 Law J. N. S. 
Chan. 262; 10 Jur. 213. 



FOBM OF PROVISO AGAINST ANTICIPATION. 283 

There a testator directed his trustees during the life of his 
daughter, to pay a fund to such person or persons as she 
should appoint, and in default of appointment for her sepa- 
rate use, and he directed that the receipt or receipts of his 
daughter, or of the person or persons whom she might au- 
thorise to receive the same annual proceeds, or any part 
thereof, should alone be an effectual discharge to his trustees 
for the payment thereof, and his trustees should always be at 
liberty to require from his daughter a separate authority or 
receipt from time to time for each quarterly payment, it being 
his intention that the annual interest and proceeds should 
not be charged, sold, or otherwise disposed of. It was held 
by Sir L. Shadwell, V. C. E., that an assignment by the 
daughter of her interest was valid on the ground that, there 
having been an absolute gift, a subsequent declaration that 
she should not alien was nugatory. 

20. In Brown v. Bamford (a). Sir L. Shadwell, V. C. E., 
observed : " When I was in the habit of drawing convey- 
ances, and wished to settle on a lady property over which 
she was to have no power of anticipation, I always used to 
introduce an express proviso that no receipt should be a dis- 
charge to the trustees, except a receipt given by the lady for 
the rents or dividends (according to the nature of the trust 
property) then actually become due. The proviso to which 
I have alluded declared, as far as my recollection serves me, 
that the receipts of the lady under her own hand, to be given 
from time to time after the rents or dividends should have 
actually accrued due, should be, and that no other receipts 
should be, effectual discharges to the trustees for the amount 
of the monies therein expressed to be received." 

21. But it is, perhaps, questionable whether anticipation 
would be effectually prevented by such a proviso (J); and 
it is clear tliat where words have been previously used 
sufficient to restrain anticipation, their effect will not be 

(a) 11 Sim. 131. (ft) See Act n v. White, cited p. 278, ante. 



284 PROVISO ONLY OPEKATIVE DURING COVERTURE, 

destroyed by the absence of negative words in the receipt 
clause, (a) 

22. It is to be observed that clauses restraining antici- 
pation will only operate during coverture. Thus, in a 
case (J) where personal estate was settled to the separate 
use of the wife for her life, so that she should not anticipate 
it, with remainder as she should appoint by will, and, in 
default of appointment, to her daughter ; it was held that, 
on the death of her husband, she was intitled, with the 
concurrence of the daughter, to call for a transfer of the 
principal. Sir Thomas Plumer, M. R., referred to Brandon 
V. Robinson (c) as establishing that the right of alienation 
is a necessary incident of property. He observed that the 
power of a feme covert over separate estate, being a creature 
of equity, equity might modify that power ; but this reason 
only applied during coverture: when the married woman 
became discovert, she had the same power over her property 
as other persons. The attempt to impose upon the power 
of alienation a fetter, unknown to the common law of 
England, might be permitted to the extent to which that 
power was created by equity, but no further. 

23. In this case, however, the clause against anticipation 
was confined to the then existing marriage, so that, of 
necessity, it determined with the coverture. But in the 
later cases of Woodmester v. Walker (d) and Brown v. 
Pocock (e), where the restraint against anticipation applied 
to future coverture, it was held that the wife might, whilst 
discovert, dispose of the property. The same point had 
been previously decided by Sir W. Grant, M. R., in the case 
of Jones V. Salter. (/) 

24. But if the wife, whilst discovert, has made no dispo- 
sition of the property, the clause in restraint of anticipation, 

(a) Harrop v. Howard, 3 Hare, (c) 18 Ves. 429 ; 1 Rose, 197. 

626 ; 14 Law J. N. S. Chan. 82 ; 9 (cQ 2 Russ. & M. 197. 

Jur. 82. (e) 2 Russ. & M. 210. 

(6) Barton v. Briscoe, Jac. 603. (/) 2 Russ. & M. 208. 



ITS EFFECT ON SUBSEQUENT COVERTURE. 285 

the effect of which was suspended whilst she was discovert, 
will come into operation upon her marriage. 

25. Whether anticipation could be restrained, except 
during an existing coverture, has been the subject of much 
discussion. The point directly arose in the cases of Newton 
V. Reid(a) and Brown v. Pocock(J); and it was there held 
that a clause in restraint of anticipation during a future 
coverture was inoperative. But these cases have been over- 
ruled by the decision of Lord Langdale, M.R., in the case of 
TuUett V. Armstrong (c), which has established the validity 
of clauses against anticipation under such circumstances. 

26. In this important case his Lordship, after reviewing 
the authorities, laid down the following propositions : — 

" That property given to a woman for her separate use, 
independent of any husband, may, in equity, be enjoyed by 
her during her coverture as her separate estate, although 
the property originally, or at any subsequent period op 
periods of time, became vested in her when discovert. 

" That in respect of such separate estate, she is by equity 
considered as a feme sole, although covert. Her faculties 
as such, and the nature and extent of them, are to be 
collected from the terms in which the gift is made to her, 
and will be supported by equity for her protection. 

" The words * independent of a husband,' whether ex- 
pressed or implied in the terms of the gift, mean no more 
than that equity will not permit the marital power of the 
husband to be used in contravention of the enjoyment of the 
property according to the terms of the gift. 

" If the gift be made for her sole and separate use, without 
more, she has during coverture an alienable estate inde-^ 
pendent of her husband. 

(a) 4 Sim. 141. of Lord Brougham in Woodmester 9. 

(b) 5 Sim. 663 : see also Johnson Walker, 2 Russ. & M. 207. 

V. Freeth, 5 Law J. N. S. Chan. 143 : (c) 1 Beav. 1 : Scarborough r. 
Malcolm v. O^Callaghan, 5 Law J. Borman, ibid. 34. 
N. S. Chan. 137 : and the remarks 



286 RULE LAID DOWN BY LORD LANGDALE. 

^^ If the gift be made for her sole and separate use, 
without power to alienate, she has,' during the coverture, 
the present enjoyment of an unalienable estate independent 
of her husband. 

" In either of these cases she has when discovert a power 
of alienation ; the restraint is annexed to the separate estate 
only, and the separate estate has its existence only during 
coverture; whilst the woman is discovert, the separate 
estate, whether modified by restraint or not, is suspended, 
and has no operation, though it is capable of arising upon 
the happening of a marriage. 

" The restriction cannot be considered distinctly from the 
separate estate, of which it is only a modification ; to say 
that the restriction exists, is saying no more than that the 
separate estate is so modified: the donor in giving the 
woman, when married, some of the faculties of a feme sole, 
has withheld the power of alienation ; under the terms of 
the gift, and by the aid of equity, the woman is a feme sole 
as to the present enjoyment of the property, but no further ; 
measuring her faculty by the terms of the gift, she is not a 
•feme sole as to the disposition of her property in antici- 
pation of her intended provision. If there be no separate 
estate, there can be no such restriction as that which is now 
under consideration. The separate estate may, and often 
does exist without the restriction, but the restriction has no 
independent existence ; when found, it is a modification of 
the separate estate, and inseparable from it." 

27. This decision was afiirmed on appeal by Lord Cot- 
tenham, C, who, after an elaborate examination of the 
authorities, said that after the most anxious consideration, 
he had come to the conclusion that the jurisdiction which 
the Court had assumed in similar cases, justified it in 
extending it to the protection of the separate estate, with its 
qualification and restrictions attached to it throughout a 
subsequent coverture ; and resting such jurisdiction upon 
the broadest foundation, and that the interests of society 



BY LORD COTTBNHAM. 287 

required that this should be done. When the Court first 
established the separate estate, it violated the laws of 
property between husband and wife; but it was thought 
beneficial, and it prevailed. It being once settled that a 
wife might enjoy separate estate as a feme sole, the laws of 
property attached to this new estate, and it was found, as 
part of such law, that the power of alienation belonged to 
the wife, and was destructive of the security intended for it. 
Equity again interfered, and by another violation of the 
laws of property, supported the validity of the prohibition 
against alienation, (a) 

28. But anticipation will not be restrained beyond a 
particular coverture when the I'estriction applies only to 
that case, (b) 

(a) 4 M. & C. 377. (b) Knight v. Knight, 6 Sim. 121. 



288 



NATURE OF PIN-MONEY. 



CHAPTER VIII. 

OF PIN-MONEY, AND OF THE WIFE'S CLAIM FOR ARREARS. 



yl 



/ 



>. 



1. Pin-money J what. 

2. Nature and purpose of, 

5. Wife surviving intitled only to 
one years arrears* 

8. Wife having demanded pin- 
money^ held intitled to all ar- 
rears^ 
10. Not intitled to all arrears though 
lunatic. 



^,^'. •^'' '^ 



1 1. No arrears given where articles 
for which pin-money allowed 
provided by husband. 

15. Wife's executors not intitled to 

any arrears^ semble, 

16. No deduction out of pin-money 

for alimonyy where husband 
and wife separated. 



1. A YEARLY allowance settled upon the wife before marriage, 
for the purchase of clothes or ornaments or otherwise, for 
her separate expenditure, is generally known by the name of 
pin-money ; as also are gratuitous gifts, or payments from 
time to time made to the wife by her husband after marriage 
for such purposes. 

2. Pin-money, however, is not to be considered as an ab- 
solute gift from the husband to the wife, nor like money set 
apart for the wife's sole and separate use during the cover- 
ture, excluding the jus mariti ; but as a sum allowed for the 
wife's personal expenses, and to deck her person suitably to 
her husband's rank, who has accordingly an interest in its 
expenditure, (a) 

3. This difference between the wife's pin-money and her 
other separate estate is material to be borne in mind where 
questions arise as to her claim for arrears of pin-money after 
her husband's death. 

(a) See the remarks of Lord See also Jodrell v. Jodrell, 9 Beav. 

Brougham in Howard v. Digby, 8 45 ; 15 Law J. N. S. Chan. 17; 9 

Bligh, N. R. 269, where the subject Jur. 1022. 
of pin-money was much considered. 



WHERE WIFE INTITLED TO ARREARS. 289 

4. The following propositions appear to be authorised by 
the cases upon this subject, which, however, do not very 
distinctly draw the line between pin-money and separate 
estate. 

5ir When the wife permits her pin-money to run in arrear 
for a considerable time, upon surviving her husband she will 
only be permitted to claim arrears for one year prior to his 
death, (a) 

6. This rule has been adopted by equity, not so much on 
account of the presumption of satisfaction of the wife's claim 
by her acquiescence, as to secure the appropriation of the 
money to the purpose for which it was intended, (b) 

7. In an early case, however (c), where at the time of the 
husband's death there was an arrear of one year and three- 
quarters of pin-money due to the wife, the Court allowed it to 
her. And it has been laid down by Lord Hardwicke (c?), 
that where the wife lives separate from her husband, and 
without any allowance, she will be intitled to all arrears due 
at her husband's death. But these cases would probably 
not be held to be authorities at the present day. (e) 

8. Where it appeared that the wife had demanded her 
pin-money without success, she was held to be intitled to 
all arrears due at her husband's death. (/) 

9. The case of Brodie v. Barry (g) has been cited as an au- 
thority that when the wife is non sance memorice^ and there- 
fore incapable of consenting or waiving her right, she is 
intitled to her full arrears. 

10. But Brodie v. Barry was not a case of pin-money, and 

(a) Aston v. Aston, 1 Yes. Sen. (df) Aston v. Aston, 1 Yes. Sen. 
267: Townshend v. Wjndham, 2 267. 

Yes. Sen. 7 : Peacock v. Monk, 2 (e) See Howard v. Digby, ubi 

Yes. Sen. 290 : Qffley v. Offlej, Pre. sup. 

Ch. 26. (/) Eidout r. Lewis, 1 Atk. 269. 

(b) Howard v. Digbj, 8 Bligh, (^) 2 Yes. & B. 36. 
N. B. 269. 

(c) Warwick v. Edwards, 1 Eq. 
Ab. 140. 

VOL. 11. U 



290 WHEBE WIFE INTITLED TO ABBBAB6 

it has been slnee decided in the case of Howard v. Digby (a), 
that the wife would not be intitled under such circumstanced* 
There the Duchess of Norfolk became a lunatic in 1782, and 
continued so until the time of her death in 1820. Her 
husband, the Duke of Norfolk, died in 1815, having, during 
the time of his wife's lunacy, maintained her, sffki during 
several years kept a separate establishment for her* A bill 
having been filed by her executors against the executors of 
the Duke, claiming arrears of pin-money from 1782 to the 
death of the Duke, it was held that the claim was viot main* 
tainable by the executors, and would not have been main- 
tainable by the Duchess herself, if she had been livii^. 

1 1 . Where the provision is expressed to be made for par- 
ticular purposes, as for the wife's apparel or private expenses, 
and they are provided for by the husband, this circumstance 
wUl bar the wife from claiming any arrears of her pin-money, 
which otherwise might be due at the decease of her husband; 
for this wUl be considered a payment or satisfacti<m by th<B 
husband, (b) 

12. Thus, in Powell v. Hankey (c), Lord Macclesfield sud 
that if there be a provision for the wife's separate use for 
clothes, and her husband provide them for herf her claim 
to the provision wiU be barred. 

13. So also in Thomas t;. B^net {d)^ pin-money was 
secured to the wife by Bettfement Mbre marriage, for her 
apparel and private expenses : the wife survived her husband 
and died; then her executors claimed 500/. for ten years' 
arrears of the provision, but it appearing that t^e husband 
maintained her, and there being no evidence that she had 
ever demanded the pin-money, the claim was disallowed. 

14. Again, in Fowler v. Fowler (e). Lord Talbot said that 

(a) 8 Bligh, N. B. 269. turned up<m the doctrine of the sa- 

(6) 3 P. W. 355 : Howard v. tisfaction of a debt hj a legacy. The 

Digby, 8 Bligh, N. B. 209. husband, in consideration of the then 

(c) 2 P. W. 84. intended marriage, and of the wife^s 

(d) 2 P. W. 341. portion, settled 100/. a year upon her 

(e) 3 P. W. 355. This case for pin-money. Two years* arrears 



OF PIN-MONBT. 



291 



where pin-money was secured to the wife, and it appeared that 
the husband, nevertheless, provided her with clothes and other 
necessaries, that circumstance, during the time that she was 
so provided for, would be a bar to any demand for arrears 
of pin-money. 

15. It seems to follow from the nature and purpose of pin- 
money, that the wife's executors have no claim against the 
husband or his estate even for one year's arrears, (b) 

16. Where the wife is intitled to pin-money, and she is 
separated from her husband, no deduction will be made out 
of her pin-money for alimony, because she would have been 
intitled to maintenance beyond the pin-money, if she and 
her husband had lived together, (c) 



became due, and then the husband 
gave her a legacy of 500/. After 
the making of the will another yearns 
arrears became due, and then he 
died. And Lord Talbot decided, 
that the legacy of 500L was a satis- 
faction of the two years* arrears, be- 
cause of larger amount than the 
debt^ upon the general rule which is 
established in such cases ; and that 
the creditor and legatee being a wife 
made no difference. But his lord- 
ship held that the bequest could not 
be a satbfaction of the one year's 



arrears, since that was a debt not 
contracted at the date of the wiU, 
and might possibly have never be- 
come due. For the distinctions 
which have been established as to 
when a legacy shall and shall not be 
a satisfaction of a debt, see Roper & 
White upon Legacies, vol. 2. chap. 
16. 

(b) Howard v. Digby, 8 Bligh, 
N.R.27J. 

(c) Ball V. Coutts, 1 Yes. k B. 
305. 



n 2 



292 



wife's separate trading 



CHAPTER IX. 

OF THE WIFE'S SEPARATE TRADING UNDER HER HUSBAND'S 
AGREEMENT, AND OF HER POWER TO DISPOSE OF SAVINGS 
OUT OF ALLOWANCES MADE TO HER BY HER HUSBAND. 



SECTION L 

OF HER SEPARATE TRADING UNDER HER HUSBAND'S AGREE- 
MENT. 



2. Where agreement valid against 

creditors, 

3. Where property vested in truS' 

tees before marriage^ wife may 
at law carry on trade as agent 
of trustees, 

4. Stock in trade wiM not be vested 

in husband or his assignees 
in bankruptcy. 

5. Jarman v. Wolloton, 

7. Effect of husbandPs covenant 

toith trustees that toife shall 

dispose of goods, 
9. Wife trading cannot negotiate 

securities in her own name, 
10. But may use husband*s name, 

semble, 
] 1. Barlow v. Bislwp, 
12. Effect in equity of securities 

given in wif^s name. 



13. Husbandy by agreement after 

marriage permitting wife to 
carry on trade^ liable at law^ 

14. Intided at law to profits, 

15« Wife intitled in equity to profUs 
where agreement before mar^ 
riage, 

16. And where agreement after 

marriage^ if sufficient evidence 
of agreement, 

17. Effect where husband deserts 

wifsy and she carries on SC' 
parate trade, 

18. Mr, Jacob's remarks, 

20. Husband liable if no trustees, 

21. Not liable where trustees, 

22. Extent of liability of husband or 

trustee, 

23. Wife trading under such agree' 

ment cannot be bankrupt. 



1. Independently of the acquirement by the wife of separate 
property by the means before mentioned, she may do so by 
carrying on trade on her own separate account, apart from 
and without the interference of her husband. Her character 
as a feme sole trader under the custom of London has been 



jjm>EB, husband's agbbement. 293 

before discussed, (a) Her ability to carry on such business 
on her own individual account, now to be considered, does 
not arise fix)m any particular custom, but in consequence of 
express agreement between her and her husband before 
marriage, or from his subsequent permission. 

2. When the agreement is made previously to the 
marriage, since the consideration is valuable, the transaction 
will not only be obligatory upon the husband, but also 
binding upon his creditors. When the agreement originates 
during the marriage, it will be void against his creditors but 
good against himself, for the reasons mentioned in a pre- 
ceding part of this work, which treats of the validity of 
settlements made before and after marriage, (b) 

3. Upon the abstract question of the legal power of the 
wife to carry on trade upon her separate account during the 
marriage, Lord Mansfield has observed (c), " that whether 
by any means a man might before marriage put his intended 
wife in a situation to carry on a separate trade, there was no 
authority that he might not do so." If, then, property be 
vested in trustees before marriage, to enable the wife to 
carry on business upon her sole account and for her separate 
use, the disability of coverture will be so far removed, that 
the transaction will be established against the husband and 
his creditors, and the separate character of the wife as a feme 
sole will be acknowledged; and for the reasons mentioned 
in the case next stated, it is unnecessary that the assigned 
articles should be enumerated or specified in a schedule 
annexed to the settlement, if they can be otherwise identified. 
In such a case, the trustee of the wife will be intitled to the 
property assigned, and to its increase and profits, for her 
sole and separate use and benefit. The law considers the 
wife as the agent of her own trustee, and her possession as 
his possession. 

(a) Suprd^ p. 76. ei seq. (c) 3 Term Bep. 620, in noHi. 

{b) See suprHf book 2. chapters 
1&2. 

u 3 



294 WIF£'6 STOCK IK TRADE FBOTBGTED 

4. Upon the application of these principles, the goods 
assigned and in the possession of the wife will be protected 
for her, and excepted out of the general rule of the common 
law, according to which a married woman can have no 
property during the coverture, but all her estate is vested 
in her husband : and upon the same principles, the goods 
assigned and in the possession of the wife will be protected 
against the operation of the statute of George the Fourth (a), 
which vests in the husband's assignees in bankruptcy all such 
personal estate as at the time of his becoming a bankrupt 
should by the consent of the true owner be in the bankrupt's 
possession, order, and disposition, or of which he should be the 
reputed owner, and take upon himself the sale, alteration, or 
disposition as owner, &c. 

5. Thus, in Jarman v. WoUoton (b) (which occurred 
when the statute of James the First (c), which contained a 
similar provision, was in operation), by a settlement before 
marriage, reciting an agreement that the wife's stock in 
trade, book debts, &c. should be assigned to a trustee for 
her separate use and disposal, to the intent that she might 
carry on her trade at her own risk and charges, and for her 
own separate and exclusive benefit, she assigned to A all 
her stock in trade and other efiects at, in, or about C, and all 
book and other debts then or afterwards to become due to 
her in the course of her business (of a milliner), and all other 
her moneys and eflfects in her trade, in trust for her separate 
use. There was not any schedule of the property annexed 
to the deed, or referred to ; but of the furniture and some of 
the articles an inventory was kept by the trustee. For 
some time after the marriage, the wife carried on her trade 
separately, and in a diflFerent house from her husband ; but 

(a) 6 Geo. 4. c. 16. sect. 72. Ayr. 173 : ex parte Elliaton, 1 Mont 

{b) 3 Term Rep. 618 : see ex parte & Ayr. 365. 
Martin, 2 Rose, 331 5 19 Ves. 491 : (c) 21 Jac. 1. c. 19. sect 11, re- 

ex parte Horwood, Mont. & M'Ar. pealed by the 6 Geo. 4. c. 16. 
169: ex parte Massey, 2 Mont & 



AQAINBT husband's A8SIQNSBS IN BANEBUPTCY. 295 

latterly all her effects were removed to his house, and she 
ciemried on her business in a separate apartment. The 
husband paid the rent of the house, and was at the expense 
of fitting up the shop. The husband having become a 
bankrupt, the trustee brought an action of trover for re** 
covery of goods and furniture, which he claimed under the 
settlement for the separate use of the wife ; but the jury 
found that tiiie wife's business was not carried on separately 
from her husband, and therefore gave a verdict for the as-» 
signees as to the stock in trade, and a verdict for the trustee 
for the furniture. The latter of these verdicts having 
been unsatisfactory to the assignees, a new trial was moved 
for, upon the grounds that either the trust deed did not 
protect the property, or that the assignees were intitled to 
retain the possession under the statute of James the First. 
As to the first, the Court decided that the deed was valid, 
the husband and wife being parties to it, and that it protected 
the goods. Sec. comprised in it for the wife's separate use ; 
also, that the want of a schedule to the deed specifying the 
property assigned was immaterial, for it would have given no 
public notice or information, and it would have been only 
known to the persons interested in the settlement. As to 
the second point, the Court said, that the husband had not 
the order and disposition of the property with the consent of 
the real owner, to make the case fall within the statute ; for 
the trustee was the legal owner, who never consented, and 
the wife's possession of the goods was as agent of such 
trustee. The Court therefore refused to grant a new trial. 
6. In the above case, the authority of Haselinton v. 
Gill (a) was recognised, in which Lord Mansfield said, that 
wherever such a trust could be supported in equity, the 
trustee would be intitled in a Court of Law. That was a 
case of the assignment to trustees for the separate use of the 
wife by a settlement before marriage of a number of her cows, 

(a) 3 Term Bep. 620, in notis : Dean v. Brown, 5 B. & C. 336. 

u 4 



296 SECURITIES NEGOCIATED OB ACCEPTED 

&c., and of the increase and produce from them, Somd 
of the cows, and of their increase, were taken in execution 
for the husband's debt, for which cows, &c. an action of 
trover was brought by the trustees, who recovered in the 
action not only the value of the cows, but of their increase. 
And with respect to the latter, BuUer, J., said, it was the 
same as if the wife had paid the produce arising from the 
original cows to the trustees, and they had purchased the 
other cows, for she acted as the agent of her trustees. But 
Lord Mansfield observed " that if the husband had carried on 
the trade in his own name, and contracted debts in it, that 
would have varied the case." 

7. Where in an antenuptial settlement, reciting that the 
intended wife was possessed of certain goods, and that it had 
been agreed that in case she survived him, she should have 
the goods, and such articles as might be bought in lieu thereof 
for her own use, and in case she should die before him, that 
she might dispose of the goods, the husband covenanted with 
trustees that he would not dispose of the goods without the 
consent of his wife, that he would purchase new articles in 
lieu of those which might be worn out or disposed of; that if 
she survived him she should have the goods to her own use, 
and if he survived her she should dispose of them subject to 
his life interest, it was held that the husband's covenant did 
not constitute him a trustee, and that at law the goods were 
the property of the husband, and might be seized under an 
execution against him, (a) 

8. In the above cases, we have seen upon what principle it 
is that a Court of Law by circuity changes in effect the 
character of wife into that of a single woman. That prin- 
ciple, however, does not apply even to transactions connected 
with tlie business, when the wife gives, negotiates, or takes 
securities in her own nartie; for, as it has been before 
observed, the common law vests all her personal estate in her 

((/) Izod v. Lamb, 1 Cromp. & J. 35. 



IN THE TBADB BY WIFE IN HBB OWN NAME. 297 

husband ; and the mode by which that is evaded by modem 
legal decisions in consistency with the rule, is by considering 
the wife as the agent of the trustee. 

9. But that construction cannot be made against actual 
expression to the contrary. Accordingly, if she give, 
negotiate, or accept securities for money in business in her 
own name, whether her separate trading be in consequence 
of such or the like settlements before marriage, as above 
noticed, or with the husband's consent after marriage, the 
securities given or negotiated will be void (a), and over 
those t^en by her the husbaod will have the same rights 
as over her other negociable iQstruments. (b) 

10. But if she use the oattie of her husband in these 
transactions, then probably f bey would be supported at law 
upon the presumption made in several other instances (c), 
of her having acted under authority from him. 

11. In Barlow v. Bishop (d), a promissory note was made 
payable to or to the order of Ann Parry (a married woman), 
who carried on business as a sole trader with the consent of 
her husband. The note was made payable to her in the 
course of her trade, and she indorsed it for value in her own 
name. The indorsee was not permitted to recover the amount 
of the note against the maker, on the ground that by the first 
delivery of the note it became vested in the husband (^), an<J 
she could not by indorsement in her own name transfer such 
interest ; but Lord Kenyon said, that since the husband per* 
mitted her to carry on business on her own account, and the 
transaction of the note was in the course of the trade, if the 
wife had indorsed it in her husband's name, his Lordship 
was not prepared to have said, that that would not have 
availed, as many acts of that nature might be done by a 
power of attorney, and a jury might have presumed what 

(a) Ante, p. 41. (e) As to this pointy see suprd^ 

(b) See supriL, vol. L p. 38. voL I. p. 38. 

(c) AfUCy p. 42. 

(d) 1 East^ 432 ; 3 Esp. 266 : see 

Cotes V. Davies, I Campb. 485. j 



298 WHBBE WIFB INTITLED TO FBOFITB. 

was necessary in favour of an authority from her husband 
for the purpose. 

12. And it seems that^ in equity, securities- given by or 
to the wife in her own name, for a debt which she is allowed 
to contract in respect of her separate property or separate 
business, wiU be established against henelf in respect of such 
property, upon the principle of her power of acting as a 
feme sole, and her absolute dominion over such separate 
estate and concerns. 

18. It may be inferred from the above opinion of Lord 
Eenyon, and what appears in prior parts of this work in 
regard to presumptions, that, at law, if the husband, by agree* 
ment after marriage, permit his wife to carry on business 
as a feme sole, her transactions in it with strangers will bind 
him, upon his presumed authority to her to do all necessary 
and proper acts for the purpose Of carrying it on, except 
when that presumption cannot be raised for such or the like 
reasons as mentioned in Barlow v. Bishop« 

14. But at law the profits are the husband's, there being 
no trustees, no obstacle to interpose between the rule of law, 
which vests in him all the wife's personal property accruing 
to her during the marriage, and her equitable title to it as 
her separate estate under the penmssion of her husband, (a) 

15. Since, however, as has been shown, a Court of Equity 
will make the husband a trustee for her separate use; if 
the husband merely agree, in articles before the marriage, 
that his wife shall carry on business on her own sole account, 
all that she earns in the trade will in equity be her separate 
property, and be applicable and disposable by her as such, 
subject to the demands affecting it. 

16. And it would seem that Equity would give the same 
effect to such an agreiement by the husband after marriage, 
if it is established by sufficient evidence, {b) 



(a) See Saville v. Sweeny, 4 B. & {b) See supra, vol. I. p. 33, and 
Ad. 514 ; 1 Nev. & M. 255. p. 304. tn/rd. 



TBADnra by wife bbsebtbd bt husband. 399 

17. In a case (a) where the husband deserted the wife, 
and she by the add of her friends carried on a separate trade 
for her support, she was held intitled to her earnings. 

There A, the daughter of B, married C, who deserted her 
with two infant children, and went abroad, and was absent 
for fourteen years. B, the mother, intrusted her with a 
stock of goods, proper for the business of a milliner and broker, 
and permitted her to take the profits for the maintenance of 
herself and children. B, in the division of her property, 
assigned to her son D personal ^tate, desiring him to assist 
A, by lending her such of the said goods as were necessary 
to enable her to support herself and family ; B also assigned 
jto her grand-daughter E, the daughter of A, the residue of 
her property. A saved 201. out of her separate trading, 
which she lent upon bond, and afterwards a like sum upon 
a promissory note, both of which were, contrary to her 
knowledge at the time, made payable to C, her husband. 
C, upon his return from abroad, possessed himself of the 
goods lent to A to trade with, and the produce of the stock, 
for the redelivery of which, and pa3rment of principal and 
interest on the bond and note, the bill was filed by the 
wife. Sec And Sir Joseph Jekyll said, that in consequence 
of the husband's desertion of his wife, the Court would con- 
sider the property acquired by her during his absence, to 
subsist herself and fietmily, as her separate property, and not 
at the disposal of her husband. He therefore declared, that 
A was intitled to the goods which were in her possession, 
and to the stock in her separate trade for her separate use ; 
also, that she was intitled to the bond and note, and decreed 
accordingly. 

18. Upon this case Mr. Jacob remarks (i), " It will be 
observed, that in this case the goods with which the wife 
carried on her separate trade had been assigned by the 
mother to her son, with a direction that they should be lent 

(a) CccU V. Juxon, 1 Atk. 278. (fr) 2 Rop. H. & W. 173 n. 



800 UABniTT OF HUSBAND OB TRUSTEE ' 

to ' the wife for the support of herself and family : a direc- 
tion which did not give her the legal property, but which 
might reasonably be considered as a trust for her separate 
use. It seems to have been taken for granted in Lamphir 
V. Creed, that the circumstance of the husband absenting 
himself or permitting her to trade separately, would not 
alone divest him of his interest in property acquired by 
her." (a) 

19. Lamphir v. Creed (6) was to this effect : A, the wife of 
B, (a soldier in a miUtia regiment, and residing with his regi- 
ment in a part of the kingdom at a distance from his wife), 
employed the plaintiff C to purchase a sixteenth share of a lot- 
tery ticket, in which she agreed that C should be equally inte- 
rested with her. At this time A carried on the business of a 
greengrocer apart from her husband, but there was no evi- 
dence of any assent of her husband to her separately carrying 
on this trade for her own use, except what could be inferred 
from his separate residence. The ticket was drawn a prize, 
and A refusing to permit C to participate in the good fortune, 
C instituted the present suit to accomplish that object ; but 
Sir WUliam Grant dismissed the bill, observing, that the 
purchase-money of the ticket was the husband's, that the 
wife was incompetent to pass his interest in any part of its 
profits or produce, or to bind him by any contracts in regard 
to such his property, except those which were incident to 
the trade ; and that as the purchase-money was the husband's 
so must be what it yielded, so that the plaintiff's title was 
defective. 

20. With respect to the husband's liability to the debts 
contracted by the wife in her separate trade, it seems that 
the husband is liable at law (as was intimated by Lord 
Kenyon, in the case of Barlow v. Bishop, before stated (<?)) 

(a) See p. 304. tn/rd. possession of Mr. Belt — Note by 

(Jb) 8 Ves. 599. ' This case, as Mr. Roper. 
stated, consists of what appears from (c) Supra, p. 297. 
the report, and from a MS. in the . ^ 



I 



FOB DEBTS CONTBACTBD BY WIPE IN THE TBADE. 301 

for the wife's debts in trade carried on by her with his 
permission, without the intervention of trustees, upon the 
presumption of her agency for him. 

21. But when the property is legally vested in trustees to 
enable the wife to carry on trade for her sole and separate 
use, it is presimied that the husband is absolved from all 
responsibility for her debts contracted in it, upon the 
presumption by which the law renders the husband liable 
in the instance before mentioned; for in such case the 
wife is the agent, not of the husband, but of the trustee ; 
the debts, therefore, are those of the trustee, and since 
he is legally intitled to the profits, he is legally respon- 
sible for the debts of his agent (the wife), incurred in con- 
ducting it. 

22. Mr. Roper seems to have considered (a) that in the 
above cases the husband or trustee would be protected in 
equity, and the creditors confined to the assets in the trade ; 
but, as Mr. Jacob observes (6), " if the trustee or husband of 
a married woman, who carries on a separate trade, have, by 
permitting or sanctioning it, rendered themselves responsible 
at law for her debts, there seems to be no principle upon 
which a Court of Equity can relieve them from this liability 
as against the creditors. A trustee or executor, wto, in the 
due execution of his trusts, carries on a trade for the benefit 
of his cestuique trusts, is not relieved from the personal 
responsibility which he incurs, (c)" 

23. It is now settled that no action can be maintained 
against a married woman. Since, therefore, no legal 
demand can be established against her, it seems that she 
cannot be made a bankrupt as a separate trader, notwith- 
standing Lord Apsley^s decision in ex parte Preston (rf), for 
this case difiers from that of a feme sole trader in the city 
of London, the custom of which, as we have before seen {e\ 

(a) 2 Rop. H. h W. 175. {d) Green, 8 : see ex parte Mear, 

(b) Ibid. 175 «. 2 Bro. C. C. 266. 

(c) 10 Ves. 120 : 1 Buck, 209. («) Ante, p. 76, et seq. 



302 WIFS'S FOWBB TO DISFOSB 09 SAVINGS 

placing the wife at law in the eituation of a single woman, 
enables her to make valid legal contracts, &c., and subjects 
her personally to answer for them. 



SECTION IL 

OF THE WIFE'S POWER TO DISPOSE OF SAVINGS OUT OF 
'^^^.f /^<r ALLOWANCES MADE TO HER BY HER HUSBAND. 



2. Sir Paul NeaVs case* 
3» SianningYM Style, 



6. Mr. Jacobus remarks. 



1. Where the husband permits the wife to have and make 
profit of certain articles of his property, either for her own 
use, or in consideration of her supplying the family with 
particular kinds of necessaries, or when he makes to her a 
yearly allowance for the keeping of his house, the profits in 
the first case, and the savings in the oth^, have in equity 
been considered as the wife's own separate estate, although 
at law, upon the principle that all the personal property 
which a married woman acquires is that of her husband, 
they belong to him. 

2. Thus, in Sir Paul Neal's case (a), it was decreed, that if 
a woman have pin-money or a separate maintenance settled 
upon her, and by managcQient or good housewifery she save 
money out of it, she may dispose of the saviogs, or any 
jewels, &c. bought with them, by writing in nature of a will, 
if she die before her husband ; or if she be the survivor, then 
it was said that the money shall be her own, and not be liable 
to her husband's debts. 

3. A leading case upon this subject is Slanning v. Style, (b) 

(a) Cited in Herbert v. Herbert, (ft) 3 P. W. 337. 
Pre. Ch. 44. 



FROM ALLOWJkKCE BY HUSBAND. 303 

It appeared that the husband allowed his first wife to dispose 
and make profit of all such butter, eggs, poultry, pigs, fruit, 
and other trivial matters, which arose from hia farm, and be< 
yond what was used in the family, for her own separate use ; 
and which allowance he called her pin-money. From her 
death, until he married the defendant Style, his sister kept 
his house, and had the same allowance, which was continued 
to the defendant, the second wife, as pin-money. It was in 
proof, that whenever any person came to buy any fowls, 
pigs, &c., the husband said he had nothing to do with those 
things, which were his wife's; and it further appeared in 
evidence^ that he confessed that he, having been making a 
purchase of about WOOL value, and being in want of money, 
had been obliged to borrow 100^. from his wife to make up 
the purchase-money. The husband being dead, his widow 
claimed the 1007. out of hia estate. And Lord Talbot de-> 
creed that she should be a creditor for such sum, observing^ 
that the money being the wife's savings, and the husband's 
agreement having been proved, it was but a treasonable enr 
couragement to her frugality, and that such agreement would 
be of little avail, if it were to determine with his death ; that 
it was the strongest proof of the husbs^nd's consent,, that the 
wife should have a separate property in the money arising by 
the savings, in that he applied to and prevailed with her to 
lend him the 100?. ; for he did not claim it as his own, but 
submitted to borrow it as her money. Therefore, and espe- 
cially as there was no creditor of the husband to contend 
with, his Lordship decreed as above. 

4. In Calmady v. Calmady (a), referred to in the above case, 
the husband agreed with his wife, that upon every renewal 
of a lease by him she should receive from the tenant two 
guineas, and that sum was allowed to be her separate 
money. 

6. So, also, in Mangey v. Hungerford (6), the wife, as it 

(a) 11 Yin. Abr. 181, 21. {b) 2 Eq. Ca. Abr. 156, in marg. 



304 MB. Jacob's bemabks. 

appeared, had saved a considerable sum of money out of 
housekeeping, and in a suit instituted against her for a dis- 
covery of what she had saved, she insisted by answer that 
she was not bound to make such a discovery ; and upon ex- 
ceptions to the answer, it was held sufficient by Lord King. 
6. "But," as Mr. Jacob remarks (a), "these cases, in which 
the wife has been considered to have a separate property in 
her savings out of a voluntary allowance from her husband, 
are shaken by later authorities, which have laid down the 
principle, that the wife cannot acquire separate property 
from her husband, except by a clear irrevocable gift, either 
to some person as a trustee, or by some dear and distinct act 
of his, by which he divests himself of the property, engaging 
to hold it as a trustee for the separate use of his wife, (b) In 
Tyrrell's case(c), where the question was as to the wife's 
right to jewels, stated to have been bought out of a yearly 
sum allowed by her husband for her expenses during 
cohabitation ; the Lord Keeper thought that would make no 
difference, that if the wife saved anjrthing out of such allow- 
ance, it belonged to the husband." 

(a) 2 Rop. H. & W. 140 n. (c) 1 Freem. 304 

(b) 5 Ves. 79: see Walter v. 
Hodge, 2 Swan. 92 ; cited mprd^ 
YoL I. p. 33. 



305 



BOOK THE FOURTH. 



OF SEPARATION BETWEEN HUSBAND AND WIFE. 



CHAPTER I. 

WHAT DEEDS PROVIDINO FOR SEPARATION WILL BE VALID. 



7. AnamaUet iniroduced by doc^ 

trine of separation by agree-- 
menL 

8. Mr, Jacobus remarks, 

9. 15. Whether deed providing for 

future separation will be en* 
forced, . 



10. ffoare v. Hoare, 

11. Mr, Roper* s remarks, 

12. DurantY, Titley. 

16. Rodney r. Chambers: deedpro* 

viding for future separation 
with consent of trustees, 

17. Mr, Jacobus remarks thereon. 



1. The last subject for our consideration is the effect of the 
dissolution or suspension of the marriage state by divorce or 
by voluntary separation of husband and wife. 

2. Where a marriage is voidable on any of the grounds 
which have been noticed in a previous part of this trea- 
tise {a)j a divorce a vinculo matrimonii may, during the life 
of the parties, be obtained from the Ecclesiastical Court. 

3. But when a valid marriage has once been contracted, it 
is, according to the law of this country, indissoluble. The 
Legislature, however, has of late years frequently granted di- 
vorces h vinculo matrimonii where one of the parties has been 
guilty of adultery. 

4. A partial divorce, usually called a divorce d mensd et 
ihorOj will, in cases of adultery or cruelty, be granted by the 
Ecclesiastical Courts, {b) 



(a) SupriL^ YoL I. pp. 6, 7. 
VOL. II. 



(6) See Poynter on Mar. and Div. p. 184. 



306 VALIDITY OF DEEDS OF SEPARATION. 

5. A partial divorce may also take place by the mutual 
agreement of the parties. This species of divorce is the 
offspring of late years. It was unknown to the common law ; 
and the Ecclesiastical Courts, which had the exclusive juris- 
diction of the rights and duties arising from marriage, did not 
permit the parties by agreement between themselves to de- 
stroy the duties and obligations of that important contract. 

6. This branch of the subject requiring to be more fully con- 
sidered than the others, we will, before noticing the points 
relating to the other kinds of divorce which fall within the 
province of this treatise, direct our attention to the doctrine 
and validity of separation deeds, the naode by whigh a volun- 
tary separation between husband and wife is carried into 
effect. 

7. The perplexities occasioned by the establishment of the 
doctrine in courts of law and equity, that a separation in pats 
is in effect valid, are noticed by Mr. Roper (a), and are 
detailed in Lord Eldon's judgment in the case of St. John 
V. Lady St. John (b); and in the case of the Earl of West- 
meath v. The Countess of Westmeath (c), which came before 
Lord Eldon on a motion for an injunction to stay proceed- 
ings at law under a deed of separation, his Lordship ex- 
pressed a strong opinion against the policy of such instru- 
ments, and against the principle of the cases in which they 
had been held valid, the injunction being refused on the 
ground that the matter depended upon a legal question. 

8. " However," as Mr. Jacob observes (rf), " the case of 
Marshall v. Rutton (e)y in deciding that a deed of separation 
does not relieve the wife from the legal disabilities of cover- 
ture, and the case of Legard v. Johnson (/), in deciding that 

(a) 2 Rop. H. & W. 267. (d) A discussion by Mr. Jacob of 

{b) 11 Yes. Jun. 529. the objections tothelegality of deeds 

(c) Jac 126. See also the opinions of separation will be found in the 

of liord Eldon in the same case in Appendix^ No. 12. 

the House of Lords, 1 Dow & CI. (e) 8 T. R. 545. 

544 : and Westmeath r. Salisbury, (/) 3 Ves. 352. 

5 Bligh, N. R. 398. 



OF DEED PROVIDING FOR FUTURE SEPARATION. 307 

an agreement for a separate provision between the husband 
and wife alone is void, from her incapacity to contract, have 
removed the chief part, if not the whole, of the anomalies 
introduced by the previous cases on this subject. These 
decisions have materially qualified the eflfect of deeds of 
separation. It may be considered at present as settled, that 
such deeds, when not contemplating a future separation, are 
valid, so far as relates to the trusts and covenants by which 
the husband makes a provision for the wife, and the indem- 
nity given to the husband by the trustees, (a)" 

9. But it is questionable whether a deed providing for 
a future separation will be enforced either at law or in 
equity. In some early cases, however, such deeds have been 
held to be valid. 

10. Thus, in the case of Hoare v. Hoare (6), which was 
decided by the House of Lords in Ireland before the union, 
the wife was intitled for life to two annuities amounting to 
400/., which before her marriage were vested in trustees, 
upon trust that if a separation should afterwards take place 
between her and her future husband at her instance, the 
trustees should permit her to take to her separate use a 
moiety of the annuities of 400Z. during such separation, and 
should permit her husband to receive the other moiety ; but 
that if a separation took place by his means, or at his 
instance, then that she sho)ild receive the whole of the 400?. 
annuities for her separate use during the marriage. It seems 
that a separation took place in consequence of the cruelty 
and misconduct of the husband ; and a bUl was filed by the 
wife in the Court of Chancery in Ireland to enjoin the hus- 
band from intermeddling with the annuities, and to restrain 

(a) See 8 T. R. 521 : 2 Ventr. 730 ; S. C. Jones v. Waite, 5 Bing. 

217: Leech v. Beer, 3 Keb. 363: N. C. 34; 7 Scott, 317; 9CL&Fm. 

2 B. C. C. 90: 3 Mer. 256 : Bate- 101 ; 4 Man. & G. 1104; 5 Scott, 

man v. Ross, 1 Dow, 235 : Jee v. N. R. 951 ; 6 Jur. 653. 

Thurlow, 2 B. & C. 547 : Innell v. . (b) 2 Ridgewa/s Pari. Ca. in 

Newman, 4 B. & Aid. 419 : Waite v. Ireland, 2G8. 
Jones, 1 Bing. N. C. 656 ; 1 Scott 



X 






308 VALiDrrr of deed providing 

the trustees from paying any part of them to him; and 
praying that the trustees might pay the whole of the an- 
nuities to the wife under the above provision in the settle- 
ment, and for a receiver. The husband stated in his answer, 
that he had always used his wife with tenderness and af- 
fection, and he offered to take her back, and to treat her as 
his wife. Upon the evidence, and the pleadings, the Court 
ordered a moiety of the annuities to be paid to her until 
cohabitation or further order, to commence from the time of 
the separation. The wife being dissatisfied with this decree, 
appealed from it to the then House of Lords in that country, 
claiming the whole of the annuities under the above settle- 
ment. All objections as to the jurisdiction of the Ecclesi- 
astical Court, and in relation to the immorality and illegality 
of the agreement, were urged, and moreover that it was an 
agreement for a divorce instead of a marriage ; and it was 
further contended that the husband having judicially offered 
to take his wife back again, had determined the separation. 
But the House of Lords was not moved by these argu- 
ments. It varied the decree, and ordered the whole of the 
annuities to be paid to the wife until she and her husband 
should cohabit, or till the further order of the Court below. 
11. Mr. Roper remarks (a), " It may be inferred from Lord 
Hardwicke's judgment in Moore v. Moore (6), that he con- 
sidered such an agreement in prespectu to be valid ; and a 
like inference may be drawn from Lord Vane's case (c), in 
which, a separation having taken place, the husband and 
wife agreed to cohabit ; and by articles entered into on that 
occasion, he covenanted, that if she desired to live apart he 
would not molest her. Afler thes6 articles were concluded, 
cohabitation took place, but, in consequence of ill treatment, 
the husband and wife separated a second time, and she 

(a) 2 Rop. H. & W. 280. (c) Stated 18 East, 171, Mi noHs; 

{h) 1 Atk. 277, stated supra, p. 2 Strange, 1202. 
135 : see also Nicholb v, Dan vers, 2 
Vern.671. 



FOB FUTURE SEPARATION. 309 

having exhibited articles of the peace against him, the Court 
considered that, under the circumstances, and the agreement 
providing such future possible separation as above (the 
validity of which was not questioned), the wife was intitled 
to security." 

12. But these decisions must be considered as overruled 
by the case of Durant v. Titley. (a) There, in a deed of 
separation between the husband and wife (reciting sub- 
sisting differences), the husband covenanted with a trustee 
to pay him an annuity of 500/. during the joint lives of 
himself and his wife in case she should live separate and 
apart from her husband, and should take one of her children 
by her said husband to live with her. The husband pleaded 
to a declaration on this covenant, that after the making of 
the said indenture his said wife cohabited with him for 
seven years, and that afterwards, without his consent, and 
against his will, she quitted and left him, and ceased to 
cohabit with him ; and to this plea the plaintiff demurred. 
The Court of Exchequer having given judgment for the 
plaintiff, the defendant brought a writ of error, and one of 
the grounds on which it was contended that the action 
could not be supported, was, that the deed being made in 
contemplation of a future separation of a husband and wife 
at the pleasure of the wife, it was contrary to the policy of 
marriage, and void in law. The Court of Error reversed 
the judgment. 

13. The authority of this case was recognised in Hindley 
V. Westmeath. (6) And in a late case(c), where the husband 
covenanted in marriage articles to settle an annuity upon his 
wife, the first payment to commence on the first quarter- 
day after his death, or on any separation taking place 
between them, the husband having ceased to cohabit with 

(a) 7 Price, 677. (c) Cockscdge v. Cocksedge, 14 

(d) 6 B. & C. 200 ; 9 Dow. & Rj. Sim. 244 ; 13 Law J. N. & Chao. 

351 : see ex parte Draycott, in re 384 \ 8 Jun 659. 

Archer, 2 Gljm & J. 283. 

X 3 



310 DEED PROVIDING FOR FUTURE SEPARATION -. 

the wife, and a bill having been filed for the purpose of having 
the articles specifically performed, Sir L. Shadwell, V. C. E., 
refiised to interfere. 

14. And a deed has been held to be void which in terms 
provided for an immediate separation, but which in reality 
meant to provide for a future separation, (a) 

15. However, in Vandergucht v. De Blaquiere (6), Lord 
Cott^nham treated the question of the validity of a deed 
providing for a future separation as unsettled ; and in the 
later case of Cocksedge v. Cocksedge(c), Sir Jas. Wigram, 
V. C, directed a case for the opinion of a court of law on the 
point, which, it is believed, has not yet been argued. 

16. It would seem that a deed providing for a future 
separation with the consent of trustees or other persons 
would be valid. Thus, it was decided by the Court of 
King's Bench in Rodney v. Chambers (rf), that the husband's 
covenant with his wife's trustees to pay her an annuity as 
separate maintenance in the event of a separation in future 
taking place between them, with the approbation of the 
trustees, was a legal and valid covenant : and the judges were 
unanimously of opinion that the trustees were intitled to 
recover in an action against the husband the arrears which 
had accrued on the annuity after separation. That such 
a covenant was binding seems to have been tacitly admitted 
by the Court of Common Pleas in the case of Gawden v. 
Draper («), which was considered in the preceding case; 
and the validity of the like covenant does not appear to 
have been doubted ill Chambers v. Caulfield (/), for there 
the deed made provision for the event of a future separation, 
and the husband covenanted, " that in case of future 
differences, and his wife should at any time thereafter find 

(a) Hindley t?. Westmeath, 6 B. & (c) 5 Hare, 397. 
C. 200 ; 9 Dowl. & Ry. 351 ; S. C. {d) 2 East, 283. 
Westmeath v. Salisbury, 5 Bligh, (e) 2 Ventr. 217. 
N. R. 339. (/ ) 6 East, 244. 

(b) 5 M. & C. 229. 



, 



WITH CONSENT OF TRUSTEES. 311 

it necessary to live separate and apart from him, he would 
permit and suffer her to leave him, &c., provided the separ- 
ation took place with the approbation of the trustees or of 
the survivor." And Lord EUenborough, C. J., in thoroughly- 
canvassing that instrument, instead of doubting its validity, 
seems to have considered it as good and binding. Upon 
Rodney v. Chambers being referred to in the argument, 
Lawrence, J., thus expressed himself: *' In that case there 
was an averment that the separation was with the consent of 
the trustees. We thought that there was nothing illegal in 
the parties agreeing to refer the question, what was a good 
cause of separation, to a domestic forum, instead of applying 
to the Ecclesiastical Court for a divorce and alimony. The 
Court, therefore, only decided in that case that a covenant 
for separation and separate maintenance with the consent 
of the trustees was good; not that a covenant was good 
generally that a wife might separate herself from her 
husband whenever she pleased, for that would be to make 
the husband tenant at will to the wife of his marital rights." 
17. This case does not seem to be inconsistent with 
Durant v. Titley, and the later authorities which have been 
cited. As Mr. Jacob observes (a), **In Durant v. Titley, 
the effect of the deed was to provide a separate maintenance 
for the wife, whenever she should be living apart from her 
husband, leaving it to her to separate from him at pleasure. 
In Rodney v. Chambers, the deed was made as an in- 
ducement to a reconciliation after some differences had 
arisen, and it provided a separate maintenance for the wife, 
only in the event of a future separation with the approbation 
of the trustees. The cases are, therefore, distinguishable ; 
and in Jee v. Thurlow(J) Lord Chief Justice Abbot, stated 
that, in deciding Durant v. Titley, it was not intended to 
shake any former decision. It was different, he said, from 
the former cases, as the deed provided for the future sepa- 

(a) 2 Rop. H. & W. 281 w. {b) 2 Barn. & Cress. 551. 

X 4 



812 MB. Jacob's bebcabks. 

ration of a husband and wife who were living together at 
the time. Mr. Justice Bailey observed, that in Rodney v. 
Chambers, the intervention of impartial persons was required 
to decide whether sufficient cause of separation did or did 
not exist ; and seems to have thought (in conformity with 
the opinion of Mr. Justice Lawrence (a) ), that it was not 
illegal to refer such questions to the decision of a domestic 
forum ; an opinion which is in some measure sanctioned by 
the cases of SoiUieux v. Herbst (i) and Bateman v. Ross, (c) " 

(a) Cited ante, p. 311. (c) 1 Dow, 235. 

lb) 2 Bos. h PuU. 444. 



COVENANTS TO ENFOBCB CONTINUANCE OF SEPARATION. 313 



CHAPTER 11. 

OP THE EFFECT OF SOME OF THE COVENANTS CONTAINED IN 

DEEDS OF SEPARATION. 



8. Covenant to prevent iuit for 
restitution of rights^ and ex^ 
ercise of control over wife, 
4. Void in EcclesiasticeU Court 
6, Whether vaUd in temporal 
courts. 

6. Mr. Jacobus opinion. 

7, 10. Cases on Habeas Corpus. 

12. Whether covenant can be en- 

forced by prohibition or m- 
junction: Mr. Jacob* s rtf- 
marks* 

13. Whether agreement for separO" 

tion fpiil be enforced perso* 
naUy in equity. 



14. Effect of tone's adultery sub- 

sequent to deed of separation. 

15. Covenant by husband to give up 

custody of children. 

16. Deed put an end to by recon- 

ciHation. 

17. Or by return to cohabitation by 

sentence of court, semble. 

18. Although by deed separation to 

be for life. 

19. Effect of sentence of Ecclesiastical 

Court. 

20. Where wife held intitled to pro- 

vision in deed after reconci- 
liation. 



1. It has been already stated that deeds of separation, when 
not contemplating a future separation, are valid so far as 
relates to the trusts and covenants by which the husband 
makes a provision for the wife, and the indemnity given to 
the husband by the trustees. 

2. But the effect of some of the other clauses usually con- 
tained in deeds of separation is more doubtful. 

3. These deeds are generally framed with the view of en- 
forcing the continuance of the separation, either for the lives 
of the husband and wife, or until they shall again mutually 
agree to cohabit, and for that purpose covenants are inserted 
to prevent any suit for the restitution of conjugal rights, 
and to restrain the husband from exercising personal control 
over the wife. 



314 



CASES ON WRITS OF HABEAS CORPUS. 



4. In the Ecclesiastical Court, provisions of this description 
are held to be void. They form no objection to a suit for 
restitution of conjugal rights, (a) 

5. In the courts of civil jurisdiction, these provisions can 
of course have no effect as against the wife personally. 

Whether they can be enforced as against the husband or 
the wife's trustees is a diflferent question. 

6. The dicta on this subject in the cases on writs of habeas 
corpus^ have, as Mr. Jacob observes (6), been much ques- 
tioned (c), and seem to be overruled by the principle laid 
down in Marshall v. Rutton (c?), that the husband and wife 
cannot by agreement change their legal capacities and cha- 
racters. 

7. The cases on writs of habeas corpus are as follows : — 
In Listor's case, decided nearly a century ago (e)j the 

husband during separation fro^ his wife, by their mutual 
agreement, seized her by force and carried her home, in order 
to compel her to live with him, contrary to the articles 
entered into upon their agreement to live apart. To regain 
her freedom, the wife sued out a habeas corpus (f ) ; and the 
Court of King's Bench gave her liberty, assigning the reason, 



(a) See Mortimer v, Mortimer, 2 
Hagg. 318: Westmeath v. West- 
meatb, 2 Hagg. Eccl.R. 115, supp, 

(*) 2Rop. H.&W.271«. 

(c) See 11 Ves.532. 

(«0 8 T. R. 545. 

(e) 8 Geo. 1 ; see 1 Stra. 477 : 
13 East, 173, in notis. 

(/) Mr. Roper states that the 
wife maj, under such circumstances, 
obtain security for ber person by filing 
articles of tbe peace, or by a suppli- 
cavit in Chancery : 2 Hop. H. & W. 
317. But, as Mr. Jacpb observes 
(2 Bop. H. & W. 318 n.), tbe object of 
articles of tbe peace and of the writ 
of supplicavit is merely to prevent 
personal violence ; and the right to 



this protection is not connected with 
engagements for a separation. In 
the case of a supplicavit, the security 
is taken, as Lord Hardwicke ob- 
serves, on the supposition that they 
are to live together: 3 Atk. 550. 
Articles of the peace were exhibited 
by the wife in Lord Vane's case, 
stated 13 East, 171, in notis; 2 Stra. 
1202. Writs of supplicavit were is- 
sued in favour of the wife in Head 
V. Head, 3 Atk. 548 ; Reg. Lib. B. 
1774, fol. 166 : and in TunnicliflPe's 
case, 1 Jac. & W. 348. The husband's 
power of restraining his wife from 
her liberty was fully considered in 
the late case of In re Cochrane, 
8 Dowl. P. R. 630 ; 4 Jur. 534. 



CASES ON WRITS OP HABEAS CORPUS. 315 

viz., that she and her husband separated by consent and 
under articles to live apart. 

8. The next case was the King v. Mead, (a) There* the 
husband covenanted never to disturb his wife, nor any person 
with whom she should live. The separation took place, and 
he, in order to have an opportunity of seizing her by force, 
or for some bad purpose, sued out a habeas corpus to bring 
up her body. The Court held that the agreement was a 
formal renunciation by the husband of his marital right 
either to seize his wife, or to force her to live with him ; that 
any attempt by him to seize her would be a breach of the 
peace ; and that if such an attempt were made in her return 
home from the Court it would be a contempt, and the Court 
told her she was at liberty. 

9. So also in the King v. Winton (6), the husband applied 
for a habeas corpus to bring up the body of his wife. Upon 
a question as to the validity of the return, Buller, J., ex- 
pressed himself to the following effect : " If this case turn out 
upon further investigation to be like that in Burrow, I am 
strongly inclined to think this would be an answer to the 
writ" 

10. A similar application was made by the husband for 
this writ in the King v. Edgar, (c) The answer given upon 
the return of it was, that the wife being intitled to consi- 
derable property to her separate use, she and her husband 
agreed to live apart under articles of separation, by which, 
in consideration of 3000Z., he was to resign aU interest in her 
property ; but that he afterwards seized and confined her. 
Lord Kenyon said that unless the wife had done something 
notoriously to destroy the articles, it was settled that the 
husband had renounced all right to her, that he had no claim 
after the articles of separation. The Court therefore told 
her she was at liberty, and if she were apprehensive of vio- 
lence she might have an officer of the Court to protect her. 

(a) 1 Burr. 542. (c) Rep. B. R. Temp. Lord Hard- 

(b) 5 Term Rep. 91. wicke, by Ridgwaj, 152, in noHs. 



316 WHETHER COVENANT ENFORCED BY INJUNCTION. 

11. In the late case of Lewis v. Ponsford (a), it was laid 
down by Lord Denman, C. J., at Nisi Prius, that, until the 
husband has given distinct notice to persons that, so far as 
by law he can, he has revoked the license given to his wife in 
a deed of separation to live where she pleases, and so long as 
the license stands, he is not justified in going to any person's 
house to reclaim her. 

12. Mr. Jacob observes (5), "It has been sometimes men- 
tioned as doubtful, whether the husband's covenant not to 
sue for restitution of conjugal rights could be enforced by pro- 
hibition or injunction, (c) In Westmeath v. Westmeath (rf), 
the Lord Chancellor said he believed that such an injunction 
had been granted in the time of Lord Bathurst, but that it 
was the only instance. From the maimer in which the point 
has been spoken of, it may be inferred, that the Courts would 
now be unwilling to entertain this jurisdiction. In the case 
last referred to, his Lordship also doubted whether an action 
at law could be maintained against the husband upon this 
covenant, and observed, that if he should take the opinion of 
a Court of law, that should be one of the points referred to 
them. In this case, a suit on the part of the husband has 
proceeded in the Ecclesiastical Court {e\ and it does not 
appear that any attempt has been made to prevent it by pro- 
ceedings at law or in equity. The arguments against the 
policy of these covenants would apply equally whether they 
were made the subject of an action or an application for an 
injunction. The latter mode of proceeding would also be 
open to another objection, from the matter being merely 
personal, not directly affecting any right of property or pe- 
cuniary interest. (/) 

'^ In one late case, indeed, a covenant of this kind was 



(a) 8 Car. & P. 687. (rf) Jac 139. 

{b) 2 Hop. H. & W. 271 ». (e) See 2 Addams, 380. 

(c)8T.E.546: 2 Cox, 107: 3 (/) See 2 Swan. 413. 
Bro. C. C. 620: 11 Yes. 533: Bee 
Butler's case, 1 Freem. 282. 



WBETHEB AGBEEMEKT FOR SEPABATtON ENFORCED IN EQUITT. 317 

brought before the notice of the House of Lords : how far 
it could be enforced did not come under consideration ; but 
some weight appears to have been attached to it. In Tovey 
V. Lindsey (a), one question was, whether the wife was to 
be considered as domiciled in Scotland, so as to be within 
the jurisdiction of the Scotch Commissary Court, where her 
husband had sued for a divorce. She was in fiict living in 
England apart from her husband, under a deed of separation 
by which he covenanted to permit her to reside wherever she 
should think proper. But it was contended that the husband 
was domiciled in Scotland, and that the domicil of the wife 
was regulated by that of her husband. On this part of the 
case the Lord Chancellor observed, that, even if the fiction or 
rule of law were admitted that the forum of the wife followed 
that of her husband, so as to give jurisdiction to the Scotch 
Courts in this case, the effect of the deed must be to put an 
aid to that rule or fiction till the deed was revoked. He 
himself had agreed that their forum should be different if 
his wife so pleased ; and then he endeavoured by this process 
to get rid of the effect of his own agreement.' " 

13. Mr. Jacob proceeds (6), "It is now settled (notwith- 
standing an early case to the contrary (c) ), that these pro- 
visions will not be enforced in equity by a decree establishing 
the agreement for separation personally, (rf) This follows 
equally whether the covenants be or be not binding on the 
husband and trustees : the effect of the decree would be to 
make them binding on the wife." 

14. In a case in the Consistory Court of London (^), where 
the husband sued for a divorce on the ground of adultery 
committed subsequently to a deed of separation, the suit was 
dismissed, the Judge being of opinion that the clauses by 
which it was agreed that the wife might live separately, in 

(a) 1 Dow, 117. («0 Wilkes v. Wilkes, 2 Dick. 

(b) 2 Rop. ^. & W. 272 n. 791 ; 3 Mer. 268. 

(c) Turner v. Warwick, Finch, (e) Barker r. Barker, 2 Addamsy 
73. 2H.'}. 



318 



COVENANT TO BESIGN CHILDEEN TO WIFE. 



such manner, at such places, and with such persons as she 
should think proper, and that the husband should not molest 
her in her person or manner of living, or compel her by 
ecclesiastical censures or otherwise to cohabit with him, or 
sue any persons for receiving, harbouring, lodging, protecting, 
or entertaining her, amounted in effect to a license to her to 
commit the offence of which he complained. As Mr. Jacob 
remarks (a), if this construction were well founded, it 
would undoubtedly form a strong objection to the validity of 
most deeds of separation. The cause was heard on appeal 
before Sir John Nicholl, and it was not necessary for him to 
decide the point, other evidence being adduced, which was 
held to prove that the deed was not made with the intention 
imputed to it, and the sentence of divorce h mensd et thoro 
was pronounced. In a case occurring shortly afterwards (6), 
where the language of the deed was the same. Sir J. Nicholl 
considered the objection unfounded : it contained, he said, 
only the ordinary provisions, which nearly in aU cases find 
their way into deeds of this nature ; and it was weU settled 
that these deeds did not bar suits for divorce, (c) 

15. Deeds of separation sometimes contain a covenant on 
the part of the husband to resign the children of the marriage, 
or some of them, to the care of the wife ; but the legality of 
such a covenant has been questioned, (d) 



(a) 2 Rop. H. & W. 272 ». 

(b) SuUivan v. SuUivan, 2 Ad- 
dams, 299. 

(c) See 1 Haggard, 142. 

Id) 11 Yes. 531. On this subject 
see Yillareal v. Mellish, 2 Swanst. 
533 : Powell v. Cleaver, 2 B. C. C. 
500 : Colston v. Morris, 6 Madd. 89 : 
Lecone v. Sheires, 1 Vern. 442. The 
father is intitled to the custody of 
the children to the exclusion of the 
mother, though they be within the 
age of nurture : Rex r. Greenhill, 4 
A.&E.624;6Nev.&M.244: Rex 
V. De Manneville, 5 East, 221 : ex 



parte M'Clellan, 1 Dowl. P. C. 81. 
The Court of Chancery, however, re- 
presenting the queen as parens pa^ 
truBy has jurisdiction to control the 
father's right to the possession of the 
children : Ex parte Warner, 4 B. C. C. 
101 ; but neither the Court of Queen's 
Bench (De Manneville v. De Man- 
neville, 10 Ves. Jun. 59), nor the 
Court of Common Pleas (ex parte 
Skinner, 9 Moo. 278.), has any such 
delegated authority. However, 
where the husband was convicted of 
felony, the Court of Queen's Bench 
has granted a habeas corpus to give 



EFFECT OF BECONCILIATION, OB RETURN TO COHABITATION. 319 

16. It has been held in several cases, that the effect of a 
deed of separation is put an end to by a reconciliation, the 
wife being again maintained by her husband, and the subject 
of the deed no longer existing, (a) 

17. Mr. Jacob observes (i), that for similar reasons it may 
be inferred that the same eflfect would be produced by a 
return to cohabitation compelled by the sentence of the Ec- 
clesiastical Courts. He adds, " There may perhaps be some 
difficulty in the application of this principle to cases where 
the deed not only provides a provision for the wife, but 
makes a permanent settlement of the husband's property, 
giving her a future interest, as in Worrall v. Jacob (c), or 



the wife the custody of the children : 
Ex parte Bailey, 6 DowL P. C. 311 : 
and8eeRexv.Dobbyn,4A.&E.644n. 
The Court of Chancery will not 
deprive the husband of the custody 
of his children, except in cases of 
gross misconduct : Wellesley's case, 
2 Russ. 1 : Wellesley v. Wellesley, 
2 Bligh, N. R. 124 ; 1 Dow. & CI. 
152 : Ball v. Ball, 2 Sim. 35 : In re 
Fynn, 12 Jur. 713 : re Pulbrook, 11 
Jur. 185 : re Spence, 2 Ph. 247 ; 16 
Law J. Chan. 309 ; 1 1 Jur. 399 : and 
it will not give the possession to a 
mother who has withdrawn from her 
husband : De Manneville v. De Man- 
neville, 10 Ves. Jun. 52. By the 
2 & 3 Vict. c. 54, mothers are ena- 
bled to have access to their children, 
and to have them delivered up, if 
under seven years of age. The act 
does not enable the wife to resist the 
husband's application to the court 
for the custody of his children : Cor- 
sellis V, Corsellis, 1 Dm. & War. 
235. The act does not seem to 
apply to the case where., before the 
petition has been presented, the 
husband has removed the children 
to a foreign country : In re Taylor, 



11 Sim. 178 ; 9 Law J. N. S. Chan. 
399 ; Taylw v. Taylor, 4 Jur. 959. 
Nor will the court make the order 
pending proceedings in the Ecclesi- 
astical Court, or where the wife has 
left her husband without sufficient 
cause : ihid* It seems that the order 
may be made ex parte^ if the nature 
of the case require it : ibid. It is 
not required by the act, as a con- 
dition of the interference of the 
court, that the wife should have ob- 
tained, or be intitled to obtain, a di- 
vorce a mensa et ihoro : ex parte 
Bartlett, 2 Coll. 661 ; 15 Law J. 
N. S. Chan. 418 ; 10 Jur. 768. The 
Vice-Chancellor of England has ju- 
risdiction under the act, although the 
Lord Chancellor and Master of the 
Rolls are alone mentioned in it : In re 
Taylor, 10 Sim. 291 ; 9 Law J. N. S. 
Chan. 399 ; 4 Jur. 983. 

(a) Fletcher v. Fletcher, 2 Cox, 
99 : Bateman v. Ross, 1 Dow, 235 : 
Jee V. Thurlow, 3 B. & C. 551 ; 4 
DowL & Ry. 11 : Scholey v. Good- 
man, 1 Car. & P. 36 : Westmeath v. 
SaHsbury, 5 Bligh, N. R. 339. 

(b) 2Rop. H. & W.273». 

(c) 3 Mer. 255. 



320 EFFECT OF RECONCILIATION, OB RETURN TO COHABITATION. 

where it contains provisions partly for the benefit of the 
children." (a) 

18. Since a reconciliation in general avoids the deed, it 
makes no difference in substance, in this respect, whether it 
be framed with a view to a separation during life, or to a 
separation until the parties shall agree to cohabit. 

19. It seems that a sentence of the Ecclesiastical Court 
directing a return to cohabitation, even if not obeyed, might 
also prevent the operation of the deed, at least so far as to 
prevent it from being enforced in favour of the disobedient 
party. (6) 

20. Where by express provision in the deed the trusts 
were to continue valid, notwithstanding reconciliation, the 
wife, who had returned to live with her husband, was held 
to continue intitled to a provision made for her in the 
deed, (c) 

(a) As in Hulme v. Chitty, 9 (6) See 2 Cox, 107. 
Beay. 437 ; 10 Jur. 323 : see Lord (c) Wilson v. Mushett> 8 B. & Ad. 

Eidon's remarks in Westmeath v. 743. 
Westmeath, 1 Dow & CL 519. 



* » 



BFFBCT WHERE DEED WITHOUT CONSIDERATION. 



321 



CHAPTER III. 

OP THE VALIDITY OF DEEDS OF SEPARATION AGAINST THE 

HUSBAND*S CREDITORS 



2. Void against creditors where 
without consideration, 

4. But valid where for considera^ 
iiony as indemnity against 
wif^s debts. 



7. Or relinquishment by wife of 

alimony. 
10. Or compromise by wife of suit. 



L When husband and wife have resolved to separate and 
live apart, since the wife cannot by law contract with her 
husband, it is necessary that the provision agreed to be 
allowed by him on that occasion, should be either vested in 
trustees, or secured by his covenant with them. 

2. The rules applicable to settlements made after marriage, 
which have been already considered (a), in most respects 
apply to settlements upon the wife made on mutual agree- 
ment between her and her husband to live apart, since these 
provisions are made during the marriage. (6) If, therefore, 
a settlement be merely in consideration of an agreement 
between husband and wife to live separate, it will be void 
against creditors and purchasers, the statutes of the 13th 
and 27th Elizabeth extending to such a deed and to such a 
consideration. 

3. Thus, in Fitzer v. Fitzer (c). A, the wife of B, being 
intitled to an annuity of 50^., she and her husband agreed 
to live apart ; and B covenanted with trustees, in a deed of 



(a) See antcy book 2, chap. 2. 

{b) Hence an arrangement as to 
the wife's property contained in a 
deed of a separation is void as against 
her, and cannot affect her title by 
survivorship to a contingent interest 

VOL. II. 



falling into possession after her hus- 
band's death : Stamper r. Barker, 5 
Madd. 157. 

(c) 2 Atk. 511: see Clough v, 
Lambert, 10 Sim. 174. 



322 SETTLEMENT FOR VALUABLE CONSTOERATION 

separation, to allow A a separate maintenance of 14/. per 
annum out of his own estate, and 24/. a year more out of 
her said annuity, also 12/. to his daughter by her. In order 
to secure these payments, B assigned- the annuity to the 
trustees. The husband afterwards took the benefit of the 
then insolvent debtors act; and in a suit by A and her 
daughter against B, and a creditor of his subsequently to 
the deed (who was also assignee under the act), to have the 
trusts of the deed performed, Lord Hardwicke declared that 
the deed was void against the creditor, but good against the 
husband. 

4. As in the case of other settlements after marriage, 
these provisions upon separation may be obligatory upon 
creditors and purchasers when made for valuable consider- 
ations. Accordingly, if a person or trustees covenant with 
the husband to indemnify him against his wife's debts, the 
settlement will be good against his then present or ftiture 
creditors, and also against subsequent purchasers. 

5. Thus, in Stephens v. Olive (a), A was intitled to certain 
real estates for life, subject to a mortgage for 600/., and he 
and his wife agreed to live apart ; A therefore conveyed his 
life-estate to trustees, first, to keep down the interest of the 
mortgage, then to pay taxes &c., and, finally, an annuity of 
35/. to B as separate maintenance. The trustees covenanted 
to indemnify A against the debts which B might contract 
after the separation. The trustees entered into possession 
of the premises, and afterwards a judgment was obtained 
against A. The creditor instituted the suit to set aside the 
settlement as being voluntary. But Lord Kenyon, M. R., 
was of opinion that the settlement was good, and declared 
that the covenant by the trustees to indemnify the husband 
against the debts which the wife might contract after 
the separation was a valuable consideration, and supported 

(a) 2 Bro. C. C. 90 : King v. volame : and Clough v. Lambert, 10 
Brewer, in a note to that case, p. 93, Sim. 178. 
S. P. : see also p. 386, in the same 



VALID AGAINST CREDITORS. 323 

it, although it was made after the debt due to the plaintiff 
was contracted. 

6. In Worrall v. Jacob (a), A, a trader liable tg the 
bankrupt laws, and B, his wife, executed a settlement after 
marriage, by which the estate in question, originally her 
property, stood limited in default of issue of their bodies to 
the survivor of them in fee. A separation afterwards taking 
place between them, A covenanted with a trustee, in a deed 
of separation, to pay to B. an annuity of 70Z., and to convey 
his contingent estate in fee to such persons as B should by 
deed or will appoint. The trustee, on his part, covenanted 
to indemnify A against B's debts,* and against any demand 
for alimony which she might at any time make. B made an 
appointment in favour of the plaintiffs. A survived B, and 
became a bankrupt and died. The question was between 
the appointees of the wife, and the assignees of the husband. 
And Sir William Grant, M. R., determined that the covenant 
by the trustee, being founded upon a valuable consideration, 
supported the deed of separation against the assignees. 

7. " It is observable, in this case," as Mr. Roper re- 
marks (6), " that the covenant extended its indemnity to the 
wife's claim of alimony in the Ecclesiastical Court, and it 
seems that, in instances where there is no indemnity to the 
husband against the debts which the wife may contract, yet 
if, from his cruelty or other misconduct towards her, he 
give her a title in that Court to separation and alimony, 
then the consideration of the wife not prosecuting such her 
right, but consenting to accept amicably of a settlement in 
lieu of such alimony, will support the transaction against 
creditors and purchasers." 

8. Thus, in Hobbs v. Hull (c), the husband (the defendant) 
being indebted to the plaintiff in judgments and otherwise, 
a separation took place between him and his wife; upon 
which occasion he settled part of his real estates, to the 

(a) 3 Meriv. 256. (c) 1 Cox Rep. 445. 

{b) 2 Hop. H. & W. 289. 

T 2 



324 WHAT WILL BE CONSIDERED 

yearly amount of 300Z., upon his wife for separate main- 
tenance, and on the children of the marriage. It appeared 
that, previously to the separation, the husband had lived in 
a state of adultery ; and it was insisted, in answer to the bill 
filed by the judgment creditor to set aside the settlement as 
voluntary, that since the wife was, in consequence of her 
husband's misconduct, intitled to a divorce h mensd et thorOj 
and consequently to an allowance for alimony, her accept- 
ance of the provision by settlement in lieu of alimony was a 
valuable consideration, which supported the deed against the 
husband's creditors. And so it was determined ; the Master 
of the Rolls thus expressing himself: — " I am now bound 
to decide the question, whether the husband having behaved 
so ill as to intitle his wife to obtain a divorce in the Spiritual 
Court h mensd et thoro^ and to have a proper allowance from 
him, if the wife, instead of strictly prosecuthig that right, 
meet the husband on the threshold, and say she will accept 
the maintenance proposed by him without litigation, whether 
this can be said to be such a voluntary act as to be fraudulent 
against creditors. Surely this settlement can never be said 
to be without consideration, when the wife in this case 
agrees to accept this settlement, instead of resorting to 
enforce her right in the Ecclesiastical Court ; surely she is 
giving up something for it. I am therefore very clearly of 
opinion, that this is not one of those agreements which the 
statute of Elizabeth meant to prevent. I do not go upon 
any motives of compassion, when I decree as I am now 
about to do, not upon the conduct of the parties, but upon 
the rights in law, which I take to exist between them. And 
I shall dismiss this bill with costs as to all parties but the 
husband, and as to him without costs." 

9. The principle of this case was recognised by the 
Court of King's Bench in Nunn v. Ladbrooke. (a) There 
the husband received 1800^. with his wife, his own pro- 

(a) 8 Term Rep. 521. 



A VALUABLE CONSIDERATION* 325 

perty being about 200^. only. He contracted several 
debts, and having used his wife with great cruelty, they 
agreed to live apart, under a deed of separation, by the 
terms of which he, in consideration of 200Z. lent by A, and 
paid to the husband on the part of the wife, and of the 
agreement to live separate, and in order to make provision 
for her, assigned to trustees all the farming stock belonging 
to his fiirm at P (which farm he proposed to quit and assign 
in consideration of the 200^.), cattle, corn, &c,, household 
goods and furniture, chattels, and effects, upon or belonging 
to the farm, or wherever else the same might be, together 
with his interest in the lease, and all debts then owing to 
him, in trust, at the discretion of his trustees, either to 
carry on the farming business, or to sell his property and 
collect his debts, &c. ; and with the proceeds (after deducting 
the expenses of sale, &c., and repaying A the 200^. advanced 
by him, with all other monies due to him by the husband), 
in trust to pay all or such part of the husband's debts as they 
should think proper, and the residue or surplus to the wife 
for her separate use and disposal. The trustees entered upon 
their trust immediately after the execution of the deed, sold 
the greater part of the goods, &c., and. after a proper adver- 
tisement, paid all such of the husband's creditors as sent in 
their demands twenty shillings in the pound, after which 
there remained a balance of 32 9Z. 195. Irf., exclusive of some 
articles bought in by one of the trustees, and enjoyed by the 
wife on the farm, of the value of 11 H., and of the lease of 
the value of 5001. After the separation the wife resided 
constantly upon the farm, and received the produce or profits 
by the hands of the trustees. About two months after the 
execution of the deed, the husband became a bankrupt, and 
having died intestate, the assignees sued the wife as executrix 
de son tarty so that the question for the Court to decide was, 
whether the deed of separation was or was not void against 
the subsequent creditors of the husband ? And the Court 
was of opinion that it was good, as being neither fraudulent 

Y 3 



326 COMPROMISE OF SUIT BT WIFE. 

nor voluntary. And Lord Kenyon observed (amongst other 
things), "that very small considerations had been holden 
sufficient to give validity to a deed, where, in framing family 
settlements, limitations were made in favour of the distant 
branches of the family. Such remainders were not considered 
voluntary if the object of the parties making the settlement 
was fair and honest: but that the present was a much 
stronger case ; for here there was an immediate consideration ; 
independently of the provision for the husband, he was re- 
lieved from the consequences of a suit in the Spiritual Court." 
The other Judges coincided in opinion with his Lordship. 

10. And it has since been held by Lord Cottenham (a), 
that the compromise of a suit by the wife would be a suffi- 
cient consideration to support the settlement against cre- 
ditors.^ 



mz: -.-.-'- 



/ «» -> t 



/ 



(a) Wilson v. Wilson. 12 Jur. 470. 

'^ •-/ *- ^ * , /• ^'^ /- .:^\ . - ^( ■ "" ^ ' ' ' / ^ ^ /^ 

/ 






. . - •^<:\;;-^ , ..r.. ..w ;. . j ^ //— /^ ' — 









. ^ 



f >• f i .-• 



■'/^ r / 






AOBBEMENT FOB SEPARATION NOT ENFOBCEB. 



327 



CHAPTER IV. 

OF THE JURISDICTION OF EQUITY IN DECREEING THE PER- 
FORMANCE OF AGREEMENTS FOR SEPARATION AND FOR 
SEPARATE MAINTENANCE. 



1. Eqidty wiU not enforce agree- 

ment/or separation. 

2. But will oblige husband to per^ 

form agreement to pay sepa- 
rate maintenance, 

3. Whether agreement enforced 

where between husband and 
wife only, 

4. Mr, Roper's opinion. 

8. Mr. Jacobus remarhs. 

9. More v. Ellis. 

10. Mr. Jacobus remarhs thereon, 

11. Whether separate maintenance 

decreed to wife living apart 
from husband. 

14. Effect of separation upon hus- 
band's right to property ac- 
cruing to wife, 

16. Effect of agreement between 
husband and trustee for wifcy 
where husband not indemnified 
against her debts. 



20, Lord EldofCs opinion, 

21. Wife may enforce agreement 

though no indemnity, 
23. Where maintenance secured by 

deed or bond 
25. Agreement k fortiori enforced 

against husband where valu^ 

able consideration, 
27. Where wife^s property is subject 

of agreement. 

30. Durand v. Durand. 

31. Mr, JacoVs remarhs thereon. 

32. Wifes property not bounds 

unless where settled for her 
separate use. 

33. Wife's rights where trustees re- 

fuse to act, or deed lost. 

35. Court will not order an appro- 

priation of fund to secure pay- 
ment, 

36. Apportionment of wif^s allow^ 

ance. 



1. With respect to the jurisdiction of Courts of Equity upon 
the subject of separation, it may be considered as a general 
rule that they will not infringe upon the jurisdiction of the 
Ecclesiastical Court by enforcing the performance of a mere 
personal contract entered into between husband and wife to 
live apart, (a) In Worrall v. Jacob (6), this was considered 
by Sir William Grant, M.R., to be settled; and in Wilkes v. 



(a) Vide ante, p. 317. 



(6) 3 Meriv. 268. 



T 4 



328 HUSBAND COMPELLED TO PAY SEPARATE MAINTENANCE. 

Wilkes (a), where the husband by deed agreed that the wife 
should live separate from him, Sir Thomas Clark, M. R., re- 
fused to carry such agreement into execution, saying, that 
such a subject was not within the province of a Court of 
Equity. Indeed, whether the contract be executory, as resting 
in articles, or be complete, as by deed, and the trusts declared, 
the Court will not decree the performance of an agreement 
or covenant for the separation of husband and wife. (J) 

2. But although the Court will not, in direct terms, decree 
a separation between husband and wife, yet it will do so in- 
directly by compelling the husband to perform his agreement 
to pay separate maintenance. Sir William Grant, in the 
above case of Worrall v. Jacob, noticed the singularity, and 
after alluding to the Court's refusal to carry into execution 
articles of separation between husband and wife, proceeded 
thus : " It should seem to follow that the Court would not 
acknowledge the validity of any stipulation that is merely 
accessary to an agreement for separation. The object of the 
covenants between the husband and the trustee is to give 
efficacy to the agreement between the husband and the wife, 
and it does seem rather strange, that the auxiliary agreement 
should be enforced, while the principal agreement is held to 
be contrary to the spirit and policy of the law. It has, how- 
ever, been held that engagements entered into between the 
husband and a third party shall be held valid and binding, 
although they originate^ out of, and relate to, that unau- 
thorised state of separation in which the husband and wife 
have endeavoured to place themselves. I am, therefore, only 
to repeat what Lord Eldon has said in the case of Lord 
St. John V. Lady St. John, viz. * if this were res integra^ un- 
touched by dictum or decision, I would not have permitted 
such a ' covenant to be the foundation of an action or a 
suit in this Court. But if dicta have followed dicta, or de- 
cision has followed decision, to the extent of settling the law, 

(a) 2 Dick. 791. {b) 3 Atk. 550. 



EFFECT OF AGREEMENT BETWEEN HUSBAND AND WIFE ALONE. 329 

I cannot, upon any doubt of mine as to what ought originally 
to have been the decision, shake what is the settled law upon 
the subject/" 

The cases, however, have established the distinction be- 
tween a decree for a separation and one for maintenance 
under the husband's agreement, as will more fully appear 
from the authorities after stated. 

3. It has been observed that a married woman is by law 
unable to contract with her husband or any other person. 
A Court of Law, therefore, cannot interfere to compel pay- 
ment by the husband of an allowance stipulated to be made 
to his wife upon an agreement between themselves, without 
the intervention of trustees. The question then arises, 
whether a Court of Equity will decree the performance of 
such an engagement by the husband upon his and his wife's 
mutual agreement to live separate, when the contract is 
between them alone, and is merely executory. 

4. Mr. Roper seems to consider (a) that Equity would so 
decree, except where either the husband or wife apply to 
the Court for an appropriation of the produce of her 
property as maintenance, in order to enable her and her 
husband to carry into effect their intentions of separation ; 
because that would almost amount to a direct decree for 
a separation, which is not within the province of Equity. 

5. And in several cases, such as Head v. Head (6), and 
Guth V. Guth (c), it seems to have been held that the wife, 
though unable to contract for other purposes, was competent 
to contract with her husband for the purpose of a separation. 

6. Thus, in Guth v. Guth(c?), the husband and wife 
having resolved to live apart, the terms, as agreed upon 
between them, were contained in a deed poll signed by the 
husband, by which he stipulated to allow, pay, or cause to 
be paid to his wife 100^. a year for life, for the maintenance 
of herself and her child ; and if she contracted debts without 

(a) 2 Rop. H. & W. 289. . (c) 3 B. C. C. 614. 

[b) 8 Atk. 547. (d) Ubi sup. 



330 VALIDITr OF AOBEBAfEKT FOB SEPARATION 

his consent, which he should be compelled to pay, the 
agreement was to be void. The annuity being unpaid, the 
wife filed a bill for the recovery of the arrears ; and the 
Court decreed payment, after an examination of most of the 
prior cases. 

7. However, Lord Rosslyn, in the case of Legard v. John- 
son (a), and Lord Eldon in Lord St. John v. Lady St. 
John (J), expressed strong doubts of the validity of a 
contract entered into between husband and wife alone to 
live separate, and consequently of the Court's jurisdiction to 
enforce that part of it by which the husband engaged to pay 
her a separate allowance. The latter judge observed, in the 
case last mentioned, that the question had never been put 
upon the contract of the husband and wife; but that the 
Court had always put it upon the contract between the 
husband and the trustee, from the covenant of the trustee to 
indemnify the husband against her debts. Hence Lord 
Eldon's opinion seems to be, that the Court ought not to 
decree the husband to allow maintenance upon his agree- 
ment with his wife to pay it. 

8. " And," as Mr. Jacob remarks (c), " the same opinion 
was expressed by Sir J. Leach, V. C, in El worthy v. 
Bird (d), and it seems now to be clear that a Court of Equity 
will not perform a mere agreement between the husband 
and wife, by which the former is to pay a separate main- 
tenance to the latter. The wife being unable to contract, 
the agreement is without consideration. The question 
would admit of a different view if the wife was possessed 
of separate property, and agreed to relinquish or settle it ; 
this might be a consideration for the husband's agreement." 

9. More v. Ellis (6) is cited by Mr. Roper (/) as an 
authority for the validity of agreements for separation 

(a) 8 Ves. 352. (e) Bunb. 205 ; 1 Bro. ParL Cas. 

(b) 11 Ves. 532. 237, ed. Toml. 

(c) 2 Rop. H. & W. 293 n. (/) 2 Rop. H. & W. 294. 

(d) Cited posty p. 336. 



BETWEEN HUSBAND AND WIFE ALONE. 331 

entered into between husband and wife alone. There the 
wife had abandoned her husband, and during her elopement 
became possessed of considerable property, which was vested 
in trustees for her separate use and disposition. The 
husband having met her, took possession of her person ; 
and on the following day articles of agreement were entered 
into between them, by which, in consideration of his per- 
mission for her to live apart, she engaged to settle upon him 
200?. a year for life, and to pay him 1000?. out of her 
separate estate. Upon the bill of the wife to be relieved 
against, and the bill of her husband for a performance of 
the articles, the Court of Exchequer, after an issue at law, 
finding that they were voluntarily executed by the wife, 
confirmed the transaction. 

10. But, as Mr. Jacob observes (a), the decree declared 
that the articles were well executed by the wife pursuant to 
the power vested in her by the will of her father ; they took 
effect ^ an appointment, and the case is therefore distin- 
guishable from those where there has been merely an 
agreement. 

11. To the principle that a Court of Equity declines to 
do any thing which may tend to the continuance of a 
divorce between husband and wife, under their mutual 
agreement to live apart, when the husband is under no 
obligation to allow separate maintenance, may be ascribed 
the decision of the case of Duncan v. Duncan (J): by which 
the Court refused to decree to the wife separate maintenance 
out of her own property whUst she lived apart from her 
husband by their mutual consent, no improper conduct 
being imputable to him, and she not being destitute of all 
provision. The case was to this effect. The wife at the 
time of her second marriage was intitled, under the will of 
her first husband, to a part of his personal estate vested in 
trustees, and also to 3000Z. in her own right. The latter 

(a) 2 Rop. H. & W. 294 «. (b) G. Coop. 254 ; 19 Ves. 394. 



332 SETTLEMENT ON WIFE DUBIN6 SEPARATION. 

sum was settled upon her in contemplation of the second 
marriage, but her second husband made no provision for her 
out of his own property. They by mutual agreement lived 
apart, the reasons for which did not appear. During the 
separation, the wife by bill in equity prayed a settlement to 
her separate use of the property to which she was intitled 
under her former husband's will. But Sir William Grant, 
M. R., dismissed the suit, observing, that the only facts 
were, that the husband and wife did not live together, the 
cause of the separation not appearing; and that no pro- 
vision for her was made by him in addition to the settle- 
ment. Upon such a state of facts, his Honour said, that he 
did not find any instance in which the Court had ever 
decreed separate maintenance to the wife either out of her 
husband's property or her own ; that the cases in which the 
Court had interfered were, where the husband had been 
guilty of cruelty, or turned his wife out of doors, or quitted 
the kingdom without making any provision for hgr, but 
that where the case went no further than that merely of 
husband and wife living apart, he could find no authority 
for decreeing separate maintenance to her, still less for 
making any addition to what had been already settled upon 
her. (a) 

12. " In this case it is observable," as Mr. Roper notices (J), 
" that the property in question belonged to the wife when 
the settlement was made ; a circumstance which, it is pre- 
sumed, distingubhes it from the case of March v. Head (c), 
and it is conceived that Sir William Grant did not intend 
to decide, that if an accessional fortune came to the wife 
during the separation, she was not intitled to a settlement 
out of it." 

13. In March v. Head, the wife had lOOOZ. to her fortune, 
and no other provision under articles before marriage than 
her husband's covenant that he would consider himself as 

(a) As to separate maintenance, (5) 2 Rop. H. & W. 292. 
see suprity vol. I. p. 255,, ei seq, {c) 3 Atk. 720 : and see ante, p. 98. 



WHERE CONTRACT BETWEEN HUSBAND AND TRUSTEE. 333 

a freeman of London, and that if she survived him she 
should have such a share of his personal estate as belonged 
to the widow of such a person. They lived separate. 
Upon the deaths of her father and mother she, as their next 
of kin, became intitled to 1800/. more, and an application 
was made on her behalf for a further provision in con- 
sequence of this additional fortune. And Lord Hardwicke 
was of opinion that she was intitled to such a provision, and 
referred it to a Master, to receive proposals from the husband 
for a further provision on behalf of the wife, in proportion 
to the 1800/. 

14. This case shows that a mutual separation by consent 
does not deprive the husband of his right to the personal 
property which may accrue to his wife whilst they continue 
in that state, upon the terms of his making a provision for 
her out of it. 

15. The second class of cases are those where the contract 
was between the husband and a third person acting for the 
wife, and no indemnity was given to the husband against his 
liability to pay his wife's idebts. 

Upon this subject it will appear from the cases next 
stated, that the wife has precisely the same right as any 
other cestuique trusty to call for the execution of a trust 
created in her favour. It is a consequence from this pro- 
position that whether the deed of separation securing to her 
maintenance be purely voluntary, or be supported by a 
valuable consideration, as the covenant of her trustee to in- 
demnify the husband against her debts, she will be intitled 
in either case to call for an execution of the trust, (a) 

16. Turner v. Warwick (6) is a case where the agreement 
was between husband and wife for a separation, which 
agreement was completed by a deed demising lands to trus- 
tees in trust to apply the rents in payment of an annuity 

(a) 13Ves. 443: 18Ves.99:and Fitzer v. Fitzer, 2 Atk. 511, and 
see the caaes cited infrhy p. 339. stated antey p. 321. 

{b) Finch, Ch. Ca. 73 : and see 



334 EFFECT OF CONTRACT BETWEEN HUSBAND AND TRUSTEE 

of 300/. for the wife's maintenance. In a suit by the 
trustees against the husband and the tenants of the premises, 
Lord Nottingham, with the consent of the parties, ordered 
all arrears to be paid ; and further, that the husband should 
not molest his wife in her person, nor interfere with any 
goods which she should acquire. 

17. It does not appear that the husband was indemnified 
against his wife's debts, and it is to be presumed that if for 
any reason this transaction had been illegal or improper, his 
Lordship would not have made the above decree even with 
the consent of the parties. 

18. In Angier v. Angier (a), (which it may be inferred 
from the decree, did not contain any indemnity to the 
husband against his wife's debts), the husband by articles 
agreed with a trustee to allow his wife 521. a year, and to 
permit her to live where she thought fit, without molestation. 
This agreement was made while a suit by her was pending 
in the Ecclesiastical Court for separation and alimony. The 
allowance being in arrear, she filed a bill for the payment of 
it, and the Court so decreed. 

19. Head v. Head (b) also falls within this class of cases. 
There a separation took place, and during its continuance 
the husband wrote a letter to B, the wife's father, agreeing 
to pay to her 400/. a year quarterly so long as they should 
continue separate. The allowance being in arrear, she in- 
stituted a suit to recover it, which Lord Hardwicke decreed 
to her. (c) 



(a) Pre. Ch. 496. 

(b) 3 Atk. 547. 551 : and see 
Fletcher v. Fletcher, 2 Cox, 99: 
Cooke V. Wiggins, 10 Ves. 191 : and 
Seagrave v. Seagrave, 13 Ves. 439. 

{c) In this case Lord Hardwicke 
made an order on motion for the 
husband to pay 400/. to the wife to 
maintain her till the hearing of the 
cause, 3 Atk. 295. Similar orders 
were made by Lord Bathurst in Yea 



V. Yea, (shortly reported in 2 Dick. 
498). A separation had taken place, 
and the husband had by deed and 
bond secured to the wife an annuity 
charged on his estates, and the sum 
of 500/. to enable her to pay her 
debts: having afterwards refused 
payment, an action had been brought 
against him on the deed and bond in 
the Court of King's Bench, and a 
verdict obtained : he brought a writ 



WITHOUT INDEBfNlTY AGAINST WIFE's DEBTS. 



335 



20. It seems to have been the opinion of Lord Eldon in 
Lord St John v. Lady St. John (a), that the Court ought not 
to decree the husband to allow maintenance, when the con- 
tract is made between him and the trustee, but without an 
indemnity or other consideration. 

21. But in Ros v. WiUoughby (6), where the husband 
covenanted with the trustee to pay an annuity for the 
wife's maintenance, it was held that the covenant might be 
enforced although there was no indemnity against the wife's 
debts. 

22. And in a late case (c), where a bill was filed by the 
executors and devisees of the husband against the wife and 
the trustee, and the question was whether in the absence of an 
indemnity the deed could be enforced, Sir L. Shadwell, V. C, 
held that it could, taking a distinction between the cases 
where the wife claimed in competition with creditors, and 
where with devisees or legatees. 

23. A fortiori J the wife will be intitled where the husband 
has secured separate maintenance by a deed conveying an 
estate, or a bond giving a legal right of action to the wife's 



of error, and filed a bill in the Court 
of Exchequer for an injunction to 
stay the proceedings in the action. 
The bill in Chancery was filed by the 
wife to recover the amount due to 
her, and to have a receiver appointed. 
On a motion made after answer, it 
was ordered that the husband should 
in a month pay to the wife the sum 
of 600^ towards her support and 
maintenance, and to enable her to 
carry on and defend any suits re- 
lating to the matters in question; 
this was to be without prejudice^ 
and subject to the further order of 
the Court, 24th Jan. 1774: Reg. Lib. 
B. 1773, fo. 129. 

The wife afterwards moved, that 
a further sum of 1000/. might be 
paid to her by the husband, or that 



a receiver might be appointed to re- 
ceive the rents of his estates for the 
purposes of the deed of separation, 
and to pay the sums due to her. An 
order was made in terms similar to 
the former order, directing a further 
advance of 600/., 19th July, 1774; 
Reg. Lib. B. 1773, fo. 244 : see 1 
Atk. 277 : 2 Bro. P. C. 24. Note by 
Mr. Jacob to 2 Rop. H. & W. 297. 

(a) 11 Yes. 532 : see also Jones 
V. Waite, 7 Scott, 338. 

(ft) 10 Price, 2. 

(c) Anon. cor. V. C. 1839, re- 
ported in a note to Howarth v. 
Bostock, 4 Y. & C. Eq. Ex. 6 : see 
also Wilson v. Wilson, 14 Sim. 405 ; 
14 Law J. N. S. 204 ; 9 Jur. 148 ; 
affirmed on appeal, 12 Jur. 467. 



336 WHERE INDEMNITY AGAINST WIFE'S DEBTS. 

trustee, (a) The want of a consideration is not, then, material 
as between the parties, and a Court of Equity will, if necessar}', 
assist the wife by corapelliiig the trustee to enforce the 
security against the husband for her benefit. 

24. Thus, in Frampton v. Frampton (J), where on a sepa- 
ration the husband assigned the dividends of stock to which 
he was intitled during the joint lives of himself and his 
wife to trustees for the benefit of the wife, it was held that the 
transaction was effectual, although there was no indemnity ; 
Lord Langdale, M. R., remarking, that it had never been 
decided that without the intervention and covenant of a 
trustee the husband might not voluntarily execute a deed 
or create a trust in favour of his wife, and that such deed 
or trust might not be binding as against him even if the 
benefit of that deed or trust should be made dependent 
upon an existing or continuing separation, which was the 
principal, if not the only inducement for the whole arrange- 
ment. 

25. It being established that the Court will execute a 
voluntary agreement of the husband entered into with a 
third person to allow his wife maintenance upon their sepa- 
ration, h fortiori it must do so, when the husband receives 
a valuable consideration for such his engagement as the 
covenant of a trustee to indemnify him against his wife's 
debts. Some of the cases upon this subject are mentioned 
below, (c) 

26. In Elworthy v. Bird (d), the bill filed by the wife and 
her trustees prayed a specific performance of an agreement 
to execute a deed of separation, securing an annuity to the 
wife, and indemnifying the husband against her debts. The 
husband put in a demurrer, which was argued before Sir 
John Leach, V. C. His Honour gave judgment for the plain- 

(a) See Seagrave v. Seagrave, 13 386 : Stevens v. Olive, 2 B. C. C. 
Ves. 439. 90. 

(b) 4 Beav. 287. (d) 2 S. & St. 372. 

(c) Seeling v. Crawley, 2 Vern. 



WHERE PROPEBTY SETTLED BELONGS TO WIFE. 337 

tiffs. He observed that it was very true as a general, pro- 
position that a Court of Equity would not specifically per- 
fonn an agreement for a separation between an husband and 
wife, for in truth the wife was incapable of entering into 
such an agreement. But on examining all the authorities, 
it appeared to him, that although some little doubt had 
been suggested on the point by some Judges, it had been 
uniformly decided, that when trustees entered into an agree- 
ment to indemnify the husband against the debts of the 
wife, that was a sufficient consideration for the allowance 
stipulated to be paid by the husband, and Courts of Equity 
had never refused to perform such an agreement. 

27. The authorities which have been stated in this chapter, 
with the exception of More v. Ellis (a), are instances where 
the property belonged to the husband Mr. Roper ob- 
serves (6), that in Fitzer v. Fitzer (c), and in Bright v. 
Chapman (rf), the property was the wife's, either wholly or 
in part, and that no objections were taken to the validity 
of the transaction on that account, (e) 

28. In Fitzer v. Fitzer, the wife's maintenance was pro- 
vided out of the joint estates of her and her husband. 

29. In Bright v. Chapman, by articles of separation the 
husband covenanted not to molest his wife, and he was to 
receive an annuity out of her property, which had been 
assigned 4o trustees. Upon his bill for payment of the 
annuity out of the wife's estate, and after a defence that he, 
contrary to his engagement, had molested his wife^ the Court 
of Exchequer directed an issue to ascertain that fact, which 
Mr. Roper presumes it would not have done if the articles 
had been considered not obligatory, either from the cir- 
cumstance of the wife being to receive no maintenance from 
the husband, or of his being to receive a benefit out of her 
property. 

(a) Antey p. 330. {d) 2 Anstr. 345. 

lb) 2 Rop. H. & W. 299. {e) But see ante, p. 330. 

(c) 2 Atk. 511, Bt&ted supra, p. 321. 

VOL. U. Z 



338 WHETHER wife's PROPERTY BOUND BT SETTLEMENT. 

30. However, in the case of Durand v. Durand (a ), where 
the property belonged to the wife, the Court refused to inter- 
fere. In that case, a separation having been agreed upon, 
which afterwards took place, the terms were, that of 6050L 
Bank annuities, the wife's separate property, 1500Z. should be 
paid to her and the residue to her husband, which the wife said 
she was desirous of parting with for the sake of living sepa- 
rate. The Chancellor said, he could not find himself justified 
in interfering in any manner in a business of that sort, where 
the wife was clearly intitled to the whole, but acceded to the 
terms of giving up two-thirds for the sake of the separation ; 
his Lordship therefore dismissed her bill filed to accomplish 
the above object. 

31. But, as Mr. Jacob observes (ft), "probably the un- 
reasonable terms upon which the agreement was made, in- 
fluenced the Court in declining to interfere: the report states 
that on other terms being agreed to on the part of the husband^ 
his Lordship dismissed the bill. In other cases the Court 
has carried into effect deeds by which the wife has given up 
part of her separate property to her husband, on the occasion 
of a separation, (c)" 

32. This question may probably be thus considered : Since 
a married woman may dispose of personal property limited 
to her separate use as a feme sole, and may even give it to her 
husband, there appears to be no reason why she should not 
be competent to make it the subject of settlement upon a 
mutual agreement between her and her husband for a sepa- 
ration, {d) But with respect to her other property not so 
circumstanced, it appears from Stamper v. Barker (^), that a 
separation deed cannot bind the property of the wife, if not 
settled to her separate use. So far as it is her deed, it is in- 

(a) 2 Cox Rep. 207. (d) Logan v. Birkett, 1 M. & K. 

{b) 2 Rop. H. & W. 290 n. 220; 11 Law J. 53. 

(c) Wilkes V. Wilkes, 2 Dick. (e) 5 Mad. 279. 
791 : More v, Ellis, stated ante, p. 
330: see Bright v. Chapman, 2 
Anst. 345, stated antCy p. 337. 



WIPE DnnXBD TO HAVE TRUST PERFORMED. 339 

operative, on the ground of her coverture, and the concur- 
rence of her friends cannot give it any additional effect. 
Her property is, therefore, not affected by it, unless reduced 
into possession during the coverture, 

33. It is a consequence of what was before stated in regard 
to the wife's right to call for the execution of the trust 
declared in her favour in a deed of separation, and to the 
same equity in all respects as any other cestuique trusty 
that if her trustees refuse to act, or the deed has been de- 
stroyed, she, in the one case, will be intitled to have the trust 
performed, and in the other to have the loss of the instru- 
ment supplied. 

34. Thus, in Seagrave v. Seagrave (a), upon the separation 
of husband and wife, he executed a bond to a trustee for 
payment to her at the house of B of an annuity of hs. a week 
during his life ; but she was to be permitted to live where 
she pleased. The bond was burnt by the trustee with the 
husband's privity and consent, and a bill was filed by the 
wife for arrears of the annuity, and for the execution by her 
husband of another bond to a new trustee. The husband in 
defence insisted upon the circumstances of her leaving the 
house of B, where she resided, and living in adultery, both 
of which facts were proved. And Sir William Grant, M. R., 
after remarking that adultery was no bar to the wife's de- 
mand (ft), directed that she should be at liberty to bring an 
action in her trustee's name upon the bond, the destruction 
of which was admitted in the answers of the husband and of 
the trustee ; his Honour observing, that the question which 
had been made between the parties with regard to the real 
tenor of the condition would be open, and that it was more 
fit that such question should be investigated at law than in 
that Court. 

{a) 13 Ves. 439 : see Anster v. (b) See potty p. 350. 
Holland, 3 Dowl. %t L. P. P. 743 ; 
15 Law J. N. S. Q. B. 229 ; 10 Jar. 
786. 

z 2 



340 wife's allowance on separation 

35. In Cook v. Wiggins (a), the husband gave a bond 
to a trustee for payment to his wife of 30Z. a year during 
their separation. The annuity having fallen in arrear, the 
trustee refused to enforce the bond without an indemnity. 
The wife therefore instituted a suit for payment of the 
arrears, and also to have the future payments secured, and 
a fund appropriated for the purpose. But the same judge, 
although he decreed payment of the arrears, declined ordering 
an appropriation, assigning as a reason, that a man by 
granting an annuity did not engage to bring into Court a 
sum of money sufficient to answer it ; and he observed that 
the very principle of granting an annuity was that the 
grantor might be able to pay by degrees what he had no 
means of paying at once. 

36. The object of the husband in making a separate al- 
lowance to his wife upon their separation by mutual agree- 
ment being to provide for her support and maintenance, 
such allowance will be apportioned upon the death of the 
wife between the last and accruing times of payment. 

37. This was done at law in the case of Howell v. Han- 
forth. {b) In this case a bond was given by the husband to 
his wife's trustee to pay her 80Z. a year quarterly. He also 
gave a warrant of attorney to confess a judgment on the 
bond. The judgment was entered up, and writs oi fieri facias 
were sued out at diflferent times, all of which were satisfied 
except the last, which was for 78Z. ; in regard to which it 
was ordered that it should be set aside on pajmaent of all 
arrears and costs, and that the judgment should stand as a 
security for future arrears, with liberty to apply to the Court 
to sue out fresh executions. The wife being dead, leave was 
asked to take out execution for the proportional arrears of 
the annuity between the last quarter-day of payment and the 



(o) 10 Ves. 191. see also Hay v. Palmer, 2 P. W. 

[h) 2 Blackst. Rep. 843. 1016 : 502. 



APPORTIONED OS HEB DEATH. 341 

death of the wife ; and the Court graBted the application 
upon the principle that the annuity was for the separate 
maintenance of a married woman, settled upon her by her 
husband ; a circumstance which distinguished and excepted 
it out of the general rule applicable to other cases. 



z 3 



342 



WHBTHEB WIFE! CAK CHABQE 



CHAPTER V. 

OF THE WIFE'S POWER OF ALIENATION OVER HER SEPARATE 
MAINTENANCE, AND ITS LIABILITY TO HER DEBT& 



2. Hyde t. Price. 

3. Mr, Ropef^s remarks thereon. 

4. May be charged by wife. 

5. Her power of disposing of sav^ 

ings from separate mainte- 
nance. 
7. Rights of wtf^s creditors against 
her separate maintenance. 



8. Mr. Roper's remarks. 

9. Creditor intitUd where intention 

to charge fund apparent^ or 
inferred* 

10. Stuart y. KirkwaU. 

11. How far allowance vnll dis' 

charge husband from wife's 
debts. 



1. The question as to the wife's power of absolutely disposing 
of the funds settled upon her by her husband, in consequence 
of their mutual agreement to live separate, is one which does 
not appear to have been finally settled: the adherents to 
one opinion contending, that the allowance being made for 
the wife's maintenance, she cannot alien it by anticipation ; 
whilst the persons who entertain the contrary opinion argue, 
that the wife being a feme sole in regard to this provision, 
there is no ordinary distinction between the present case, 
and the ordinary one of a limitation of property to the wife's 
separate use ; so that the jus disponendi applies to each case 
indiscriminately. 

2. Of the former opinion Lord Alvanley is supposed to 
have been, from the case of Hyde v. Price (a), in which (so 
far as it is necessary to state for the present purpose) the 
trust of 2500/., 3 per cent. Bank annuities, was declared to 
permit the wife to receive the dividends for her maintenance 
and support during the joint lives of herself and husband. 



(a) 3 Ves. 437. 



HER SEPARATE MAI19TENANCB. 343 

She and her husband by bond and warrant of attorney, in 
consideration of 560?. advanced by B, and applied in pur- 
chasing a commission in the army for the wife's son, secured 
an annuity to B payable out of the 2500/. Bank annuities 
and the dividends. Lord Alvanley, M. R., held, that the 
grant of an annuity out of the dividends could not be sup- 
ported against the wife; and he said that this was not 
property to which she was intitled to her sole and separate 
use ; that there was a special trust upon it ; that she had 
no dominion over it ; that her remedy for a misapplication 
was in that Court ; and that the grant made by her was in 
defiance of the deed, and therefore could not be enforced in 
a Court of Equity. 

3. Mr. Roper remarks upon this case (a) " the property 
was not limited to the separate use of the wife : it was vested 
in trustees upon trust as to the dividends for the wife for 
maintenance ; she had no interest in the fund distinct from 
the special trust declared to be for her maintenance and sup- 
port. It seems therefore to be a necessary consequence, that 
any disposition by the wife contrary to the trust could not 
be enforced in a Court of Equity. This case, then, appears 
to have been determined upon the special limitation in the 
deed, and not upon the general proposition, that in no instance 
can a wife dispose by anticipation of the provision settled on 
her by her husband in a deed of separation. And it should 
seem, that where the property is so settled by the husband 
upon separation, as to vest it in the wife for her separate 
use, consistency requires that she should have the same 
powers of disposition over it as over funds given to her in 
the like form of settlement by any other person. This dis- 
tinction appears to reconcile all opinions upon the subject, 
and particularly what seems to have been the opinion of the 
Court in the case of Greatley v. Noble (b) ; for there the 
trust of Lady Pomfret's allowance upon separation was de- 

(a) 2 Rop. H. & W. 304. {b) 3 Mad. 79. 94. 

z 4 



344 KiGHTS OF wife's cbeditobs 

clared to be for such intents and purposes as she should not- 
withstanding coverture direct or appoint, and in default of 
appointment, for her sole and separate use and disposal. She 
was therefore, by the effect of the above limitation, a feme 
sole of the settled property, to which character attached the 
powers of disposition which have been before noticed." 

4. In a late case (a), Lord Abinger, C. B., though strongly 
in favour of the doctrine that separate estate created by 
deeds of separation ought not to be made the subject of 
charge by the wife, said that he could not act upon it, how- 
ever just he might deem it, after the cases had gone to so 
great a length in giving effect to deeds of separation. 

5. As the wife may dispose by will of savings from her 
separate estate limited to her sole use by a stranger, so also 
she may dispose of savings from her separate mainte- 
nance (b) ; but if she make no disposition, and her husband 
be the survivor, he will be intitled to them as her admini- 
strator (c), subject to her separate debts ; and during the 
wife's life her savings will not be liable to her husband's en- 
gagements, if the settlement were made for a valuable con- 
sideration, (d) 

6. The intent of the provision made for the wife upon 
separation being to enable her to procure necessaries, it fol- 
lows that the application of it to those purposes, however it 
may have been settled, is a legitimate appropriation of the 
property. 

7. It was intimated by Sir J. Leach, V. C, in Greatley 
V. Noble (e)y that the same necessity existed that the wife 
should manifest an intention to charge her separate main- 
tenance with the debts of particular creditors, as was con- 
sidered to exist to intitle her creditors to a claim upon her 

(a) Palmer r. Fraser^ 3 Y. & C. (c) See suprOy voL I. p. 41. 
Eq. Ex. 499. (d) Supra, p. 322. 

{b) Gage r. Lyster, 2 Bro. P. C.4. («) 3 Mad. 94. 
ed. Toml. ; 2 New Rep. C. P. 159 : see 
also supra, pp. 224. 298. 304. 



UPON HER SEPARATE MAINTENANCE. 345 

separate estate when not settled upon her for support and 
maintenance upon separation, (a) 

8. However, Mr. Roper observes (b) that there appears 
to be a wide difference in principle between the two cases j 
for when the property is limited to the wife's separate 
use, and she cohabits with her husband, the creditor has 
the husband's security for payment of the debt contracted 
by the wife for necessaries ; it is but just, therefore, to 
require some evidence of an agreement between her and 
her creditor that her separate estate should be applied in 
satisfaction of his demand. But that when the creditor is 
deprived of the husband's security, by the allowance to the 
wife of a yearly sum for maintenance upon separation, ^. e. 
for the express purpose of discharging her necessary debts, it 
seems but reasonable that a Court of Equity should consider 
this to be such an appropriation of the fund for those demands, 
as to intitle her separate creditors to maintain a suit in equity 
to subject it, in the hands of her trustees, to the satisfaction of 
her debts. That Lord Thurlow seems to have had this distinc- 
tion in view in Lilia v. Airey (c) (a case of separation), when 
he expressed himself thus : — ** Upon the question whether a 
creditor has a right against the separate estate of the wife, 
and against the husband as allowing it to her, my opinion 
is, thsA primd facie a creditor has such right." (d) 

9. However, there is no doubt that when the wife's in- 
tention appears, or is inferred, to charge her separate main- 
tenance with a debt for necessaries, it will intitle the creditor 
to a satisfaction of his debt out of the fund provided for such 
maintenance. 

10. Thus, in Stuart v. Lord Kirkwall (e), the separate 
maintenance settled upon the wife was 16001. a year. She 
accepted a bill of exchange drawn upon her by a milliner 
for SS9L lis. 6d. and interest, which bill being dishonoured 

(a) See ante, p. 249, et seq. (d) Supra, p. 249, et seq. 

(b) 2 Rop. H. a W. 805. (e) 3 Mad. 387. 

(c) 1 Ves. Jan. 277. 



846 WHEBE HUSBAND DISCHABGED FBOM WIFE'S DEBTS. 

by the wife, a suit was instituted for payment of the debt, 
not only out of the money then due in the hands of her 
trustees in respect of her separate maintenance, but also out 
of future accruing payments, and for an injunction to restrain 
the trustees firom paying any more of the annuity to the wife. 
After the answers had been filed, application was made to 
Lord Eldon for an injunction, and that the annuity, as it 
became due, might be paid into the Bank, &c. ; and his 
Lordship made an order to that effect. The cause having 
been afterwards heard by Sir J, Leach, V. C, he decreed 
according to the prayer of the bill. 

11. How far the allowance of separate maintenance to the 
wife will discharge her husband from the payment of her debts 
has been already considered, (a) 

w 

(a) Ant^f p. 18, ei seq. 



EFFECT OF HUSBAND'S OFFEB TO LIVE WITH WIFE. 347 



CHAPTER VI. 



WHAT WILL DETERMINE THE WIFE'S SEPARATE PROVISION. 



8. Effect of husbands offer to co- 
habit with wife, 

5. Offer of third person papinff 
maintenance to taJke her to his 
house. 



7. Maintenance determined by sub* 

sequent cohabitation, 

8. Effect of suit or divorce, 

10. Not determified by wift^s adul' 
tery. 



1. We have already considered what would determine a 
maintenance which had been granted by the Court of Chan- 
cery out of the wife's own property, for her support during 
the absence of her husband (a) ; and it appeared that if he 
offered to live with her, and she refused without a suffi- 
cient reason to return to him, such offer and refusal would 
determine her allowance, because the Court which granted 
it did so temporarily, viz. till the husband's return and his 
cohabitation with his wife, if not prevented by his own fault ; 
the Court therefore withdraws the allowance, if cohabitation 
be prevented by the perverseness or caprice of the wife. 

2. But this doctrine does not completely apply in cases 
where the husband and wife have agreed to live apart, and 
she has a separate maintenance secured to her by agreement : 
for that being founded upon express contract between the 
parties, or between the husband and the friends of his wife, 
it requires the same mutual agreement to dissolve as to make 
the contract. 

3. The following distinctions seem to have been established 
in regard to this subject : — 

First, that if the agreement for separation be for the lives 



(a) Suprhy vol. I. p. 260, et seg. 



348 OFFER OF PERSON PAYING MAINTENANCE. 

of the parties, or until both agree to live together again, the 
wife's consent is necessary to put an end to the allowance of 
separate maintenance ; so that the offer of her husband to take 
her back again will not have that effect. 

Secondly, that if the agreement for separation be merely 
temporary, or for an uncertain period, then the husband's 
offer to take her back again, if not artfully and insincerely 
made, will, without regard to her refusal to return, deter- 
mine her separate allowance. 

4. Of the first proposition, the cases of Guth v. Guth (a), 
Hoare v. Hoare (ft), and Gawden v. Draper (c), are instances. 
Of the second proposition, the case of Head v. Head (d) is an 
instance. There the agreement to pay separate maintenance 
was confined to such time only as the husband and wife should 
continue to live apart ; i. e. with the consent of both parties ; 
and Lord Hardwicke decreed, that the husband having offered 
to receive his wife, he should receive and treat her as his wife 
if she would return to him ; but in case she did not return 
within a month, the maintenance should cease for the future. 

5. If, however, a third person covenant for a valuable 
consideration moving from the husband, to pay to the wife a 
separate maintenance, who was then living apart from her 
husband by mutual agreement, it seems that the offer of 
such person to take her to his house will not exempt her 
from her demand for the separate allowance, because the 
law imposes upon her no obligation to reside with such 
person ; besides, if such a residence were accepted by her, it. 
would have no effect in promoting a reconciliation between 
her and her husband; which is the object the law has in 
view in withholding the maintenance when it is proper to 
do so. 

6. Thus, in Dutton v. Dutton (^), A, the wife's son, for a 
valuable consideration, covenanted to indemnify the husband 

(a) Stated antey p. 329. (rf) Stated ante, p. 334, 

(5) Stated ante, p. 307. («) 4 Vin. Abr. 178, pi. 18. 

(c) 2 Ventr.217. 



EFFECT OF RECONCILTATION, SUIT, OB DIVORCE. 349 

(his father) from all debts, charges, and expenses for the 
maintenance of the wife, who at that time lived apart from 
her husband by consent. Upon the wife's bill against her 
husband and A for an allowance for maintenance, A, in 
defence to the claim, oflFered to maintain her at his own 
house. But Lord Cowper, C, ordered her an allowance of 
200L a year ; his Lordship observing that A, by his cove- 
nant, took upon himself the charge of maintaining the wife, 
and stood in the husband's place, who, under a voluntary 
separation, was obliged to grant an allowance to her; that 
A was in the nature of a trustee for the wife to the extent 
of a reasonable allowance for maintenance ; and that she was 
not bound to accept A's oflfer to take her to his house. 

7. If, after the separation, the husband and wife be 
reconciled and live together, that circumstance will avoid 
the deed or articles (a), and consequently it will determine 
the separate allowance ; for, by cohabitation, the separation, 
which was the principal, having ceased, the maintenance, 
which was the accessary, must expire with it. This was so 
considered by Lord Eldon in the case of Lord St. John 
V. Lady St. John (6), and by BuUer, J., in Fletcher v. 
Fletcher, (c) The law, in this respect, acts in consistency 
with the practice of the Ecclesiastical Court ; for, in general, 
when a reconciliation takes place between the parties, there 
is an end in that Court of the deed or articles of separation, (d) 

8. It has been decided at law, that a separation deed is 
not put an end to by an ineflfectual suit by the wife for 
a restitution of conjugal rights, or by a divorce d mensd 
et ihoro obtained by the husband on the ground of her 
adultery, {e) 

9. We have seen that in a late case the wife, notwith- 



(a) See ante^ p. 319. (e) Jee v. Thurlow, 2 Barn. & 

\b) 11 Ves. 537. Cress. 547. 

(c) 2 Cox Eep. 99. 105. 108. 
(rf) 1 1 Ves. 537 : ante^ p. 273, note. 



350 EF7ECT OF WIFB'S ADTJLTEB7. 

standing reconciliation, was held, under the temss of the 
deed of separation, to continue intitled to a provision made 
for her in it. (a) 

10. Instances in which adultery by the wife will and will 
not be a bar to her relief in equity, have been before 
noticed, (b) But this crime will not incapacitate her from 
compelling her husband to pay her separate maintenance, 
because at common law it did not affect her right to 
prosecute her civil claims. Before the statute of West- 
minster the 2nd, she was intitled to dower, as before 
has been shown ; and the exception of it by a particular 
provision proves that in other cases adultery was no bar to 
the wife enforcing any of her rights in courts of justice. 

11. In addition to the instances just referred to, may be 
added the judgment of Sir W. Grant, M. E., in the case of 
Seagrave v. Seagrave (c), and the case of Jee v. Thurlow (rf), 
where it was agreed that adultery committed by the wife 
would not affect her rights under a deed of separation. In 
Scholey v. Goodman («), however, this point was doubted, 
but the case of Seagrave v. Seagrave was not cited. 

(a) Ante, p. 820. Hj. 11 : see also FidLd v. Serres^ 1 

(b) Ante, p, 87, etseq. N. R. 121. 

(c) 13 Ves. 439. (e) 1 Bing. 349 ; 8 Moo. 350. 

(d) 2 B. & C. 551 ; 4 DowL & 



ACTION FOB wife's ADULTEBY. 



351 



CHAPTEB VIL 

OF THE EFFECT OF SEPARATION UPON THE HUSBAND*S RIGHT 
OF ACTION FOR HIS WIFE'S ADULTEBY, DURING THE PERIOD 
OF THEIR LIVING APART. 



1. Weedan v. TimbrelL 

2. Mr. Jacob's remarks thereon. 

3. Whether husband can maintain 

action. 



4. Effect where husband has not 
wholly parted with wife's sO' 
ciety* 



L It was ruled by Lord Kenyon at Nisi Prius in the case of 
Weedon v. Timbrell tJiat actions of this description being 
founded on the injury which the husband has sustained in 
the deprivation of the comfort, society, and assistance of his 
wife, an allegation to that effect being always inserted in de- 
clarations of this kind as being material and substantial, the 
consequence must be, that when the husband voluntarily 
relinquishes the comfort, society, and assistance of his wife 
by consenting to a separation from her, he can suffer no less 
from her incontinency whilst such separation continues; 
and his opinion was afterwards confirmed by the Court of 
King's Bench upon argument as to the propriety of granting 
a new trial, (a) 

2. Upon this point Mr. Jacob observes (b) : " A similar 
opinion was intimated by Lord Kenyon in two previous 
cases (c), in which articles of separation had been executed. 
In Weedon v. Timbrell, it does not appear that there was a 
deed or articles of separation. 



ri 



r ; i. 



(a) 5 T. R. 357. 

lb) 2 Rop. H. & W. 322 n. 

(c) Bartelot v. Hawker, Peake 



N. P. C. 7 : Hodges v. Windliaiii, 
ibid. 39. 



352 ACTION BY HUSBAND FOB WIFE's ADULTEBY, 

" The authority of these cases has been much shaken by 
Chambers v. Caulfield. (a) Lord Ellenborough, upon the 
opening of that case, desired that it might be argued upon 
the general point, whether the mere fact of a separation be- 
tween husband and wife, by deed, were such an absolute 
renunciation of his marital rights as precluded the husband 
from maintaining an action for the seduction of his wife, 
saying that he did not consider that question as concluded 
by the decision in Weedon v. Timbrell. 

" The editor has been favoured by Mr. Ryan with a note of 
arecent case on this point, — Graham v. Wigly, 15th Dec. 1824. 
The parties had separated by consent, and were living apart 
when the adultery was committed : but there was no deed of 
separation. Lord Chief Justice Abbot held that the action 
would lie, saying that the separation was not complete : the 
wife might sue for restitution of conjugal rights. It is be- 
lieved that other cases have occurred at Nisi Priits in which 
the doctrine of Weedon v. Timbrell has not been followed, 
and that the general opinion at present is against it. (b) 

" It will be remembered, that the case was decided at a time 
when principles were applied to deeds of separation different 
from those since adopted. If the proposition laid down in 
Marshall v. Rutton (c), that the husband and wife cannot by 
agreement alter their legal characters and capacities, be cor- 
rect, it follows, that notwithstanding such an agreement, the 
relation of husband and wife, and the rights arising out of 
that relation, must be still considered as subsisting for all 
legal purposes ; and, therefpre, that a separation will not de- 
prive the husband of the legal right of maintaining this action, 
whatever effect it may have upon the amount of damages." 

3. In the case of Winter v. Henn (d), Alderson, J., con- 
sidered that the husband would be in titled to recover unless 
he had in some degree been a party to his own dishonour, 

(a) 6 East, 244. 256. (c) 8 T. R. 548. 

lb) See Hammond's Nisi Prius, (d) 4 Car. & P. 494. 
p. 232. 



DURING SEPARATION, 353 

either by giving a general license to his wife to conduct 
herself as she pleased with men generally, or by assenting to 
the particular act of adultery, or by having totally and per- 
manently given up all the advantage to be derived from her 
society. The point, however, must be considered as still 
unsettled, (a) 

4. But the case of Chambers v, Caulfield (b) establishes this 
proposition, that the surrender by the husband of his marital 
rights to the comfort, society, and assistance of his wife, 
under the instrument of separation, must be complete and 
absolute \ so that if the husband reserve his wife's assistance 
for the benefit of their infant children, and she is to have 
liberty to visit his house as often as she pleases, to afford 
them all necessary care Si,nd attention, in such and the like 
instances the husband may maintain an action for criminal 
intercourse with hex during the separation, upon the principle 
that he had not in fact wholly parted with the comfort, society, 
and assistance of his wife. 

(a) See Harvey ©.WatBon, 7 Man. Hardy, 8 Jur. 004 : and see 1 Selw, 
& G. 644; 8 Scott N. R. 379; 2 N. P. 10, Uth ed. 
Dowl, & L. 3.43 ; & C. Watson v. (b) 6 East, 244. 256, 



VOL. IT. A A 



354 POWER OF EQUITY TO DECREE 



CHAPTER VIIL 

OF THE POWER OF COURTS OF EQUITY TO DECREE SEPARATE 

MAINTENANCE. 



2. Lambert ▼. Lambert, \ 3. Mr, Jaeolfs remarks thereon. 



1. It seems that in one instance a Court of Equity has 
referred it to a Master to settle the amount of a proper 
maintenance for the wife during the separation, which, when 
made, must have had the eflfect of discharging the husband 
from her future debts. 

2. This was the case of Lambert v. Lambert (a), which 
came before the House of Lords in the year 1769, on an 
appeal from the Court of Chancery of Ireland. The bill 
was filed by the wife, alleging that she had by fear and 
duress been driven to execute a deed of separation, which 
provided her with an inadequate allowance : the husband's 
defence rested chiefly on a denial of the marriage. The 
Court decreed that the deed, so far as it might prevent the 
wife from recovering a maintenance during the separation 
between her and her husband, should be set aside; and 
it was referred to the Master to enquire into the circum- 
stances of the estate and fortune both of the husband 
and wife, and what would be proper to allow the latter for 
her maintenance during the separation. The decree was 
affirmed by the House of Lords. 

3. Mr. Jacob observes (6), " The grounds of this decision 
do not appear from the report. The language of the decree 
proceeds upon the supposition, that the deed, while it 
remained unimpeached, would prevent the wife from re- 

(a) 2 Bro. Pari. Ca. 18, ed. Toml. (b) 2 Hop. H. & W. 308 n. I 



SEPARATE MAINTENANCE. 355 

covering a proper allowance of alimony, whioh indeed 
followed from the opinion then prevailing, that a feme 
covert was competent to contract for a separation^ One of 
the arguments on the part of the wife was, that the object 
of the suit was to set aside a deed, a matter of which 
the Court of Chancery clearly had: cognizance, and that the 
rest of the relief was consequential. Possibly, this may have 
been the reasou of the decision. It seems to have been 
so considered by Lwfd Loughborough, wha in BaU v. Mont- 
gomery (a) alluded to this case, and said, that the authorities 
were much considered : he added : ^ I take it now to be the 
established law, that no Court, not even the Ecclesiastical 
Court, haa any original jurisdiction to give a separate main- 
tenance% It is always as incidental ta some other matter 
that she becomes intitled to a separate maintenance.' If 
this was the ground of the case, the principli^ of it does not 
apply at present, as a separation deed is not held to be 
binding on the wife personally, and does not prevent her 
from suing for alimony. But whatever may have been the 
principle of this decree, the reference to the Master to fix 
a proper allowance for a separate maintenance went far 
beywid the limits within which the Court of Chancery 
in England has confined its jurisdiction, the powers of 
decreeing separate maintenance having long since been 
distinctly disclaimed, except in cases where there is an 
agreement or a trust for that purpose (6), or where the 
wife^s property is within the control of the Court. 

" Lord Loughborough is indeed reported to have said, 
that if the wife applied to the Court of Chancery *upon 
a supplicavit for security of the peace against her husband, 
and it is necessary that she should live apart, as incidental 
to that, the Chancellor will allow her separate mainte^ 
nance.' (c) This passage has been quoted by Sir W, 

(a) 2 Ves. Jun. 195. (c) 1 Ves. Jun, 195. 

(6) 3 Atk. 550 : 2 Cox, 102 : 3 
Ves. 359. 

A A 2 



356 MR. Jacob's remarks. 

Grant (a), and the same opinion was advanced in the argu- 
ment of Lambert v. Lambert. (6) 

"But there seems to be no reported instance of the 
exercise of such a jurisdiction, and it would be inconsistent 
with the object and form of the writ of supplicavit (c)" 

4* Except in the particular cases mentioned above, the 
wife can only obtain a separate maintenance in the Ec* 
clesiastical Courts, where alimony is decreed to be paid 
to her by the husband during the pendency of any suit 
between them, and after its termination, if it ends in a 
sentence of separation on the ground of the husband's mis* 
conduct This will be the subject of the ensuing chapter, • 

(a) 19 Ves, 397. (c) See supra, p. 314. 

{b) 2 Bro. P. C. 26, 



ALIMONY PENDENTE LITE, 



357 



CHAPTER IX. 



OF ALIMONY. 



1. AUmony pendente lite, where 

allowed* 

2. fVhen it may he applied for by 

wife, 

3 . From what time computed* 

5. Payments after alimony allotted. 

7. Permanent alimony commences 

from sentence of separation* 

8. Effect where appeal and sen- 

tence of court below affirmed. 

9. Amotmt how determined. 

10. Husband^ s income how estimated. 
IL Wif^s separate income taken 

into account. 
12. IfadequatCy no alimony allowed. 

14. Where husband insolventy but 

intitled to property in rever- 
sum. 

15. Permanent alimony larger than 

alimony pendente lite. 



16» What amount allowed for per" 
manent alimony. 

17. Amount how determined. 

18. When varied by subsequent af- 

teration in husband's circum- 
stances. 

20. Effect of delay on part of hus- 

band or wife in applying to- 
the court 

2 1 . Not defeatedby husbands fraud- 

ulent ttssignm£nt 

22. Payment of one yeasts arrears 

only enforced. 

23. Alimony belongs exclusively to 

Ecclesiastical Court, 

24. But writ of ne exeat regno 

granted by equity, 

25. Cannot be aniicipatedor charged. 

26. Not allotted where divorce for 

wife^s adultery. 



1. kuMOWi pendente lite is allowed in suits instituted either 
by the husband or wife for divorce, or for restitution of con- 
jugal rights, and in suits for nullity of marriage instituted 
by the husband, (a) 

2. The application may be made by the wife as soon 
as it appears from the pleadings or the evidence that there 
has been an actual marriage. (6) 

3. And the allowance is usually computed for the return 
of the citation (c), though in cases of delay occasioned by 



(a) 2 Hagg. 204: Poynter on 
Marriage and Divorce, p. 247. 

{b) Ibid.: and 2 Hagg. 199: 2 
Addams, 254. 

A A 3 



(c) Bain v. Bain, 2 Add. 254. 



358 OF THE wefe's title to alimony. 

the husband, it is in the discretion of the Court to allow it 
from the date of the citation, (a) 

4. Where the wife appeals from a sentence of separation 
pronounced against her by reason of her adultery, she is 
allowed alimony during the pendency of the appeal, (b) 

5. Payments made after the time when alimony is 
allotted will be deducted on account of the alimony, (c) 

6. Where the wife had instituted a suit for restitution of 
conjugal rights, and alimony had been decreed pendente litCj 
the husband having refused to receive the wife, it was held 
that she was intitled to alimony subsequently to the decree 
for restitution, and that, for the purpose of alimony, the 
cause was pendente lite until the husband obeyed the decree 
of the Court, {d) 

7. Permanent alimony commences from the date of the 
sentence of separation, {e) 

8. Where, on appeal, the sentence of the Court below is 
affirmed, permanent alimony commences from the date of the 

, sentence of the Court below. (/) 

9. To determine the amount to be allowed, inquiries are 
made into the state of the husband's circumstances, as to 
which he is bound to answer upon oath, {g) His statements 
may be disputed and met by evidence on the part of the 
wife. (A) 

10. In the calculation of the husband's income, the esti- 
mated value of all marketable securities must be included (z), 
also reversionary property (A;), but not a mere expectancy»(Z) 



(a) 2 PhilL 209. if) Frankfort ». Frankfort, 8 Jur. 

(b) Loveden t^. Loveden. In that 1 105. 

case the allowance was made from {<g) Fraser t?. Fraser, Poynter, p. 

the date of the sentence and appeal, 248^ 

which were on the same day* (A) Brisco v, Brisco, 2 Hagg^ 199; 

(c) Ilamerton «. Hamerton, 1 (i) Harris v. Hat^ri^ 1 Hagg. 
Hagg, EccL R. 23. Eccl. R. 351. 

(rf) Taylor r. Taylor, Privy C, 6 (A) Stone v. Stone, 3 Curt 341 ; 

Jur. 633. 7 Jur. 380. 

(e) Cooke r. Cooke, 2 PhiU. 40. (/) Ibid. 



I 



WHAT AMOUNT ALLOWED FOR ALIMONY. 359 

The amount of capital embarked, or the particulars of part- 
nership concerns, ought not to be stated, but only the in- 
come, (a) 

1 1 . The Court also takes into consideration any separate 
income of which the wife may be in receipt, whether arising 
from separate property or pin-money (6), or from an allow- 
ance secured to her by a deed of separation, (c) 

12. And if her separate income is adequate, no allowance 
of alimony is made, (d) 

13. In Westmeath v. Westmeath (^)y it was held that the 
husband was not intitled to a deduction in respect of small 
8u«ns which had been left to the wife for her separate use,, 
nor in respect of her salary as Lady of the Bedchamber, but 
that he was intitled to a deduction In respect of a salary 
granted to her from the Crown. 

14. Where the husband, who had brought a suit for a 
divorce, was an insolvent, but it appeared that he would be 
intitled to property on his father's death, the Court refused 
to make any allowance of alimony, but stayed the pro- 
ceedings until some small sum was afforded to the wife for 
maintenance. (/ ) 

15. A more liberal allowance is made for permanent 
alimony than for alimony pendente litSy both because the 
delinquency of the husband is then established, and because 
the Court considers the situation of the wife during the con- 
tinuance of the suit to call for retirement and seclusion, (^r) 

16» In several instances,, a third part of the joint income^ 
has been assigned to the wife for permanent alimony; in 
some as much as a moiety. (A) One-fifth has been mentioned 

(a) Higgs «. Higgs, 3 Hagg. (e) 3 Enapp, P. C. C. 42. 
Eccl. R..473. if) 1 Curt. 6^6. 

(b) 2 Hagg. 201. 203 : 1 PhiU. 40: {g) Cooke v. Cooke, 2 PhiU. 44 •< 
2 PhiU. 153. Otway v. Otway, ib. 109 : Brisco v^ 

(«) Blaquierer.BIaquiere, 3Phill. Brisco, 2 Hagg. Consist* E. 201: 

258* Bees v. Rees, 3 Phill. 390 : Kempe 

(d) See Wilson r. Wilson, 2 Hagg. v. Kempe, 1 Hagg. Eccl. R, 532. 
203 : Davies «. Davies, ibid. 204 n. : (A) See Cooke r, Cooke, 1 Phill, 
1 Phill. 40. 

A A 4 



360 



WHAT AMOUNT ALLOWED FOR ALIMONY. 



in one case, as a reasonable proportion for the allowance 
pendente lite (a)] in others a larger allowance has been 
made, (b) 

17* The proportion is not regulated by any certain rule, 
but in determining it the Court is influenced by all the 
circumstances of the case ; allowing less where the husband 
has children to maintain (c), where expenses have been 
thrown on him by extravagance on the part of his wife (c?), 
or where his income is derived from his personal exertions(€); 
and allowing more where a large part of the property has 
been derived from the wife. (/) 

18. Where there have been circumstances of aggravation 
in the husband's conduct (^), it is in the discretion of the 
Court to vary the amount in case of a subsequent alteration 
of the husband's circumstances. (A) 

19. It has been held that the reduction of the husband's 
income by unprofitable speculations is no ground for a 
proportionate reduction of permanent alimony allotted 
twenty years before, (i) 

20. Where both parties had long abstained from applying 
to the Court, the one for a reduction of alimony, the other 
to enforce the regular pa3anent of it, the Court has refused 
to interfere, (k) 

21. The wife's title to alimony will not be defeated by the 
fraudulent assignment by the husband of his property after 
the commencement of the suit. (I) 



40: Otway v^ Otway, ibid. 109: 
Smith V. Smith, ibid. 235 1 Streat v, 
Streat, 2 Add. 2 : Kempe v, Kempe, 
1 Hagg. EccL R. 532. 

(a) 2 Hagg. 201 ; 1 Hagg. Eccl. 
R. 526. 

{b) Smith V. Smith, 2 PhilL 152 : 
see 3 PhiU. 390. 

(c) 2 Phill. 110: 3 PhiU. 259 : 1 
Hagg. Eccl. R. 529. 
. {d) 2 Hagg. 202. 

(e) 2 Phill. 44. 



if) 2 Phin. 44. 235^ 

iff) 2 PhiU. 46. 110: 2 Add. 2: 
3 Hagg. Eccl. R. 657. 

(A) See PoTnter, p. 253 : and 2 
PhiU. 110: 3 Add. 270: 3 Hagg. 
Eccl. R. 329 : Stotie v. Stone, 9 Jur. 
381. 

(i) 4 Hagg. EccL R. 278. 

{k) De Bkquiere v^ De Blaquiere, 
3 Hagg. Eccl. R. 322. 

(/) 2 Hagg. EccL K 5. 



JURISDICTIO» OF EQUITT AS TO ALIMONY. 



361 



22. The Court will not in general enforce the pajmient of 
arrears of alimony beyond one year, (a) 

23. Alimony is a subject which belongs properly and 
exclusively to the Ecclesiastical Courts, (b) It was accord- 
ingly held in a late case(c), that a bill could not be 
maintained in equity by the executors of the wife against 
the husband for arrears of alimony. 

24. The only cases in which equity has exercised any 
jurisdiction on the subject seem to have been in granting 
the Avrit of ne exeat regno ; this interference having arisen 
from the circumstance that the Ecclesiastical Court cannot 
compel the husband to find bail.(cZ) 

25. It seems that alimony cannot be anticipated or 
charged, {e) 

26. Alimony will not be allotted in case of divorce for 
adultery on the wife's part ; for as that amounts to for- 
feiture of dower after his death, it is a sufficient reason why 
she should not partake the husband's estate while living. (/) 



(a) Wilson v. "Wilson, cited in a 
note to JDe Blaquiere v. De Bla- 
quiere, 3 Hagg. Eccl. B. 329. 

(J)) It seems, however, that the 
writ de estoveriis hctbendis lies for 
the recovery of it : 1 Bl. Com. 441. 

{c) Stones r. Cooke, stated in 8 
Sim. 321 n. ; decided by Lord Lynd** 
hurst on appeal, and reversing the 
decision of Sir L. Shadwell, 7 Sim. 
22. 

(d) Yandergucht v, De Blaquiere, 
8 Sim. 323. The cases on this sub- 



ject are collected in DanielFs Chan- 
cery Practice, p. 1562, 2d ed. by 
Headlam ; to which may be added 
the early case of Roebuck v. Roe- 
buck, 2 Coop. (t. Cot.) 251 : Lord 
Kldon, however, appears to have en- 
tertained a strong opinion against 
the writ being applied to the case of 
alimony: ibid. 253. 

(e) Vandergucht v, De Blaquiere, 
8 Sim. 323 ; 5 M. & C. 229; 3 Jur. 
1116. 

(/) 3 Bl. Com. 94, 95. 



362 



EFFECT OF DIVORCK 



CHAPTER X. 

OF THE EFFECT OF A DIVORCE UPON THE RIGHTS AND 
LIABILITIES OF HUSBAND AND WIFE. 



SECTION L 



OF THE EFFECT OF A DIVORCE A MENSA ET THORO. 



1. Wife does not become a feme 

sole, 

2. Husband may release wife^s le- 

gacy, 

3. Whether wife barred of dower, 

4. Shute ▼. Shute, 

5. Where wif^s rights by custom 

of London forfeited. 



6* Greene v. Otfe. 

7. Husband restrained from selling 

wife^s term, 

8. Where husband discharged from 

payment of wifis debts, 

9. Husband^ s concurrence in con* 

veyance of wif^s property dis- 
pensed with^ 



1. A DIVORCE a mens A et thoro does not destroy the re- 
lation of husband and wife so as to make the latter a feme 
sole, (a) 

2. We have seen (b) that after such a divorce the husband 
may release a legacy bequeathed to his wife. 

3. The wife will not be barred of her dower merely by 
such a divorce, (c) 

4. Shute V. Shute (d) has been cited as an authority that 
equity will not assist a widow in recovering her dower, who 
has been divorced for adultery. But that case is not an 
authority for this position. There, after a divorce a mensd 
et thorOy the husband died intestate. The wife by bill 
prayed assistance as to dower and administration (it being 
granted to another), and distribution. The Master of the 
Rolls bid her go to law to try if she was intitled to dower, 



(a) Suprdy p. 74, 

{b) SuprOy vol. I. p. 72. 



(c) Supra, voL L p. 539. 
{d) Pre. Ch. 111. 



A MENSA ET THORA. 368 

there being no impediment^ and, as to that, dismissed tliei 
bill : as to the administration he said, the granting that is 
in the Ecclesiastical Court, but the distribution more pro- 
perly belongs to this Court ; but since in the Ecclesiastical 
Court she is not sued as wife, as she is intitled to adminis- 
tration, therefore the bill must be dismissed as to that too ; 
and he added, that if she could repeal that sentence, she 
would then be intitled to distribution. 

5. A wife divorced a mensA et thoro, on account of her 
adultery, forfeits her right to her moiety and widow's 
chamber, according to the custom of London, (a) 

6. In Greene v. Otte(6), it was held that a divorce a 
mensd et thoro obtained by the wife against her husband on 
the ground of adultery and ill-treatment after his bank- 
ruptcy, did not intitle her in equity to the whole of a fund 
bequeathed to her, which came into possession after the 
bankruptcy, although no settlement was made upon her at 
her marriage, and the husband at that time received 1500Z. 
stock in her right ; but a reference was made for approving a 
proper settlement on her. 

7. In an early case (c), after a divorce a mensd et thorOj 
an injunction was moved for to prevent the husband from 
selling a term belonging to the wife. The Court at first 
thought it should not be granted, because the marriage con- 
tinued, and the husband had the same power over it as 
before the divorce ; but it was afterwards granted ; for 
though the marriage continued, notwithstanding such di- 
vorce, yet the husband did no act as a husband, nor the 
wife as a wife. 

8. It has been stated, that wher^ alimony has been de- 
creed) the payment of it, although insufficient, will discharge 
the husband from liability to his wife's debts, {d) 

9. We have seen that ifi certain cases the Court of 
Common Pleas is authorised to dispense with the husband's 

(a) Pettifer <?. James, Bunb. 16. (c) Anon. 9 Mod. 43, 44. 

(b) IS.& St. 250. (d) Suprd, p. 19. 



364 



ii^FECT OF DIVORCE 



concurrence in the wife's conveyance of her estates, (a) 
One of these cases is where the husband is living apart 
from his wife, either by mutual consent, or by sentence of 
divorce. 



SECTION n. 



OF THE EFFECT OF A DIVORCE A VINCULO MATRIMONII. 



1. What acts avoided by divorce. 

2. 3. Whether wife shall have her 

personal estate again. 

4. She may enter under 32 H. 8. 

c. 28. 

5. Effect upon gift to husband and 

tai/e and heirs of their bodies. 

6. Upon joint purchase of lands 

by husband and wife. 

7. Whether husband intiiled to 

emblements. 

8. Whether obligation revived made 

to wife by husband before 
marriage. 



9. Husband not liable for wife^s 
debts after divorce ab initio. 

10. Wife loses her title to dower. 

11. May sue and be sued as a fevne 

sole. 

12. Effect of divorce granted by Act 

of Parliament. 

13. Clauses in divorce bill at suit of 

husband. 

14. Clauses in bill at suit of wife. 

15. Provision made for wife out of 

husbands estates. 
17. English marriage not dissolved 
by foreign divorce. 



1. With respect to a divorce a vinculo matrimonii^ it is 
laid down in Brooke (6), that things executed, where the 
husband is seised in right of the wife, shall not be avoided 
by divorce, as waste, receipt of rent, seisin of ward, present- 
ment to a benefice, gift of goods of the wife, &c. But other- 
wise it is in matter of inheritance, as if the husband dis- 
continues or charges land of his wife, releases or manumits 
villein, &c. 

2. Where the marriage is void ab initio^ the husband 
acquires no right over his wife's property, {c) Accordingly 



(a) Suprh, p. 48. (c) Aughtie v. Augbtie, 1 Phil- 

(b) Br. Deraignmenti &c. pi. 18. ]im. 203. 



A VINCULO MATRIMONH. 365 

it is laid down in Dyer (a), that where the marriage is 
void ab initio^ if the wife has any goods or personal estate, she 
ought to have them again, for cessanie causd cessat effectus. 

3. But if the husband had given or sold them without 
collusion before the divorce, there is no remedy 5 but if by 
collusion, she may aver the collusion, and have detinue of 
the whole whereof the property may be known, and as fop 
the rest, which consists of money &c., she shall sue in the 
Spiritual Court (6), and prohibition does not lie. (c) 

4. It has been stated that if the husband aliened his 
wife's land, and they were afterwards divorced a vinculo 
matrimonii^ the wife, during the life of her husband, might 
enter by the stat. 32 H. 8. c, 28- {d) 

5. If land be given to a man and his wife, and the heirs 
of their two bodies together, and they are divorced a vinculo 
matrimoniij they shall neither of them have this estate, but 
be barely tenants for life, notwithstanding the inheritance 
once vested in them, (e) 

6. If the husband and wife purchase jointly, and are dis- 
seised, and the husband releases, and after they are divorced, 
the wife shall have the moiety ; though before the divorce there 
were no moieties; for the divorce converts it into moieties, (/) 

7. If a lease be made to husband and wife during cover- 
ture (which gives them a determinable estate for life) and 
the husband sows the land, and afterwards they are divorced 
a vinculo matrimonii^ the husband shall have the emblements, 
for the sentence of divorce is the act of the law, (g) 

(a) 13 a. I see Br. Coverture. (d) Svpra^ vol. L p. 165 : see 

pi. 82 : Br. Deraignment and Di- Co. Litt. 326. a, 

vorce, pi. 10: Stevens r. Tottj, {e) Co. Litt. 28: see Br. Taile 

Cro. EL 908. pL 19. Dones, &c. pi. 9, cites 7 H. 4. 16, 

{b) Br. Deraignment and Divorce, per Thirning, J. : Br. Deraignment> 

pi. 10. &c. pi. 16, cites 13 E. 3. 

(c) Br. Deraignment, pi. 17., {f) Br. Deraignment, pi. 18, cites 

cites F. N. B. tit. Prohibition. But 52 H. 8. 

Brooke adds a quaere, if the pro- {g) 6 Rep. 1 16. 
perty had been altered by sale or 
otherwise before the suit com- 
menced. 



366 EFFECT OF DIVORCE A VINCULO MATRBIONH. 

8. In an early case it is laid down that if a man is bound 
to a feme sole, and afterwards marries her, and afterwards 
they are divorced, the obligation is revived, (a) This case 
was cited and agreed to by Holt, C. J., in Cage v. Acton (i), 
because the divorce being a vinculo matrimonii^ by reason 
of some prior impediment, as prsBcontract, &c., makes them 
never husband and wife ab initio ; but if the husband had 
made a feoflfment in fee of the lands of his wife, and then 
the divorce had been, that would have been a discontinu- 
ance, as well as if the husband had died, because there the 
interest of a third person had been concerned, but between 
the parties themselves it wUl have relation to destroy the 
husband's title to the goods ; and it proves no more than 
the common rule, viz., that relation will make a nullity be- 
tween the parties themselves, but not amongst strangers. 

9. After a divorce ah initio^ the liability of the husband 
for his wife's debts does not continue ; for where the wife be- 
comes a single woman by operation of law, it is the same as 
if she had always remained single, (c) 

10. On a divorce a vinculo matrimonii^ the wife loses her 
title to dower, {d) 

11. And after such a divorce she may sue and be sued 
alone as a feme sole, {e) 

12. The points laid down in the above authorities seem to 
apply to divorces a vinculo matrimonii granted by the Eccle- 
siastical Courts, where the marriage is declared null and 
void ah initio. (/) What are the effects of a divorce a vinculo 
matrimonii^ granted by act of parliament, does not very 
clearly appear. 

(a) Br. Coverture, pi. 82, cites (e) Hatchett v. Baddelej, 2 Bl. 
26 H. 8. 7. per Fitzherbert and Nor- 1079 : see Leon v. Schutz, 2 Bl. 
wich. 1 195. and suprct, p. 70. 

(b) 1 Ld. Bay. R. 521 : but see (/) As to the grounds for which 
Dy. 140. pi. 39. such divorces will he granted, se© 

(c) Anstey v. Manners, 1 Gow, suprh^ voL I. pp. i6, 7. 
N. P. C. 10. 

{d) Co. Litt. 32 a : 33 A : 7 Rep. 
140. 



iSFFECT OF DIVORCE BY ACT OF PARLIAMENT. 367 

13. However, in all bills of divorce at the suit of the 
husband, there are five enacting clauses : — 

The first of these enacts, that the bond of matrimony being 
violated and broken by the manifest and open adultery set 
forth in the preamble, the same is hereby from henceforth 
dissolved, annulled, vacated, and made void to all intents, 
constructions, and purposes whatsoever. 

The second clause enacts, that it shall be lawful for the* 
complainant, at any time after the passing of the bill, to marry 
again as freely, in all respects, as if the party convicted of 
adultery were actually dead ; and that the issue of any such 
future marriage or marriages shall be legitimate and inherit- 
able, in like manner and form as other issue born in lawful 
wedlock. 

The third clause enacts that he shall be intitled to be tenant 
by the courtesy of the lands, &c. of any aft^r-taken wife or 
wives ; and, on the other hand, that such after-taken wife or 
wives (unless barred), shall be intitled to dower, free-bench, 
thirds, &c. 

The fourth clause enacts, that the guilty wife shall be 
barred of dower, free-bench, thirds, &c. 

The fifth clause bars and excludes the husband from all 
right and title in respect of any future property or estate, 
real, personal, or mixed, that may be afterwards acquired 
by the wife from whom he is divorced, (a) 

14. When the wife is complainant, the third clause of the 
bill enacts that she shall be intitled to dower, and free-bench 
of the lands of any future husband or husbands ; and that 
such husband or husbands, on the other hand, shall be in- 
titled to be tenant by the curtesy of her lands, &c. 

The fourth clause enacts, that the guilty husband shall be 
barred of all right and interest in any lands or estates, real, 
personal, or mixed; and all ornaments, wearing apparel, 
goods, chattels, and personal estate and effects whatsoever 
enjoyed by the wife, or to which she is intitled in possession 

(a) Macqneen's Practice of the House of Lords, 507. 



368 EFFECT OF DIVOECE BY ACT OF PARLIAMENT. 

in her own right, or which she may at any time thereafter 
acquire, become seised, or possessed of, or intitled to. (a) 

15. In passing such bills it is the ordinary course of the 
legislature to make some provision for the wife out of the 
husband's estates. (6) 

16. In the late case of Hastings v. Orde (c), on the mar- 
riage of a female wq-rd of court, her fortune, consisting of 

• sums of stock and other choses in action, was settled Avith 
the sanction of the court, in trust for her husband and 
herself for their lives, with remainder to their children, with 
remainder to the wife absolutely, if she survived her hus- 
band, but if she should die in his lifetime, then as she should 
appoint by will, and in default of such appointment, in trust 
for her next of kin, according to the statute of distribution, 
as if she had died unmarried and intestate. There was no 
issue of the marriage, which was, some years afterwards, 
dissolved by act of parliament. The husband afterwards re* 
leased all his right and interest under the settlement to the 
wife. It was held by Sir L. Shadwell, V. C. E., that the 
marriage having been put an end to, and there being no 
issue, the wife was not bound by the settlement. 

17. It must be borne in mind that no divorce or pro- 
ceeding in the nature of a divorce in any foreign country, 
Scotland included, will have the effect of dissolving a mar^ 
riage contracted in England, (d) 

(a) Macqueen's Practice of the Tovey v, Lindsay, 1 Dow, 117: 

House of Lords, 608. Conwaj, otherwise Beaaley, v. Beaz- 

{b) 2 Steph. Com. 813: Mac- ley, 3 Hagg. EccK R. 639: M'Car- 

queen's Practice of the House of thy v. Decaiz, 2 Buss. & M. 614 : 

Lords, 537. Warrender v. Warrender, 9 Bligb, 

(c) 11 Sim. 205. N. R. 89; 2 CI. & Fin. 488; 

(d) LoUey's case, Russ. & Ry« 2 Shaw & Maclean^ 154. 
C. C. 237 ; 2 CI. & Fin. 567 n ; 



APPENDIX. 



No. I. 

On the Law relative to the Solemnization of Matrimony. By Mr. 

Jacob, (a) 

Previouslt to the Marriage Act (ft), the legal validity of marriages 
depended upon the doctrines of the Ecclesiastical Courts. Some 
former statutes (c) had inflicted penalties upon parties concerned in 
the celebration of clandestine marriages, but without venturing to 
control the rules which the church had established with reference to 

■ 

tKeir validity. An opinion was commonly entertained that matri-* 
mony, ordained and regulated by the divine law^-wasnot to be treated 
as a human institution, and was not a proper subject for the inter- 
ference of the civil legislature. This opinion formed one of the 
principal grounds upon which the new principle of nullity of mar- 
riage, introduced by the Marriage Act, was opposed. 



(a) Vide tuprd, vol. I. pp. 2, 3, 4. 6. 
8. This discussion formed No. 1. of 
the Addenda to Mr. Jacob's edition of 
Roper. The passages and references 
inclosed within brackets have been 
added by the present writer. 

(h) 26 Geo. 2. chap. 33. It is said, 
tiiat at the time when this act was in- 
troduced, the attention of the legisla- 
ture had been particularly drawn to the 
subject, by a case which came before 
the House of Lords in its judicial ca* 
pacity. The case seems to .have been 
that of Cochran v. Campbell, an appeal 
from Scotland, noticed in the opinions 
given in Dalrymple v, Dalrymple, 2 
Hagg. 105. 125. That case was decided 
by the House of Lords on the 31st of 
Jan. 1753, and on the same day it was 
ordered that the judges should prepare 

VOL. IL B 



a bill for the better preventing clandes- 
tine marriages. Lords' Journals, vol. 
xxviii. p. 14. But although the ex- 
ample which this case furnished of the 
effects of the Scotch law of marriage 
was probably the immediate occasion of 
the measure, it was confined to England. 
Some alteration in the law of Scotland 
was^ however, contemplated at the time : 
afler the bill had been committed, it 
was ordered that the Lords of Session 
in Scotland should prepare a bill for 
the more effectually preventing clan- 
destine marriages in that part of the 
kingdom. Lords* Journals, vol. xxviii. 
p. 98. 

(c) 6 & 7 Will. 3. chap. 6, sec. 52. 
7 & 8 Will. 3. chap. 35. sec. 2, 3, 4 
10 Anne, chap. 19, sec. 176. 



B 



870 APPENDIX. 

That statute also effected another important alteration in the law 
of marriage, by the chiuse (a) enacting that no suit or proceeding 
should be had in any Ecclesiastical Court, to compel a celebration of 
marriage in facie eccIesicBy by reason of any contract of matrimony, 
whether per verba de prcesenti or per verba defuturo, (b) Before the 
passing of this statute, the Spiritual Courts possessed the power of 
decreeing the performance of a contract of matrimony ; and as such 
a contract was thus capable of being enforced, it had for some 
purposes the effects of marriage. 

In later times the attention of the Courts has seldom been called 
to the distinctions which previously prevailed upon this subject, and 
expressions have sometimes been used, which seem to imply an 
opinion that a matrimonial contract, unattended with any religious 
ceremony, was before the alteration of the law equivalent to a 
marriage legally solemnized, (c) This opinion is understood to have 
been explicitly advanced in a recent case, (d) Upon the trial of an 
issue out of the Court of Chancery, on the legitimacy of a person 
bom before the Marriage Act, the Lord Chief Justice of the King's 
Bench is said to have ruled, that at that period a contract of matri- 
mony per verba de prcBsenti constituted a legal marriage. On a 
motion for a new trial, the question was elaborately argued before 
the Lord Chancellor, but did not ultimately call for a decision. 

The question, though not one of frequent occurrence in England, 
is still of considerable importance with reference to marriages in 
Ireland and the colonies, and to marriages amongst the two sects 
which are excepted from the operation of the Marriage Act. It may 
not, therefore, be useless to devote a few pages to the discussion of 
this point. 

Matrimonial contracts, or spousals, were divided into contracts per 
verba defuhtro, and contracts per verba de prtEsenti: and contracts of 
the former description, when followed by carnal intercourse, were 
commonly considered equivalent in legal eifect to contracts per verba 

(a) SeCh 13. were added Commons* Journals, vol. 

(h) This clause was brought into its xxvi. p. 835. The words " nor to any 

present shape by amendments made in marriages solemnized beyond the sens,** 

the Committee of the House of Com- in the last section, were also added by 

mons: the word ^* contract** was inserted the Conmions. Ibid, 

instead of "precontract,** as it previously (c) See 8 Taunt. 837: 2 Hagg. 64: 

stood; and the words, "whether per 1 Dow, 181. 

verba de prtssentij or per verba de fu- (d) Beer ». Ward. 
turo, which shall be entered into,** &c. 



APPENDIX. 871 

de prtBsenti. (a) Contracts /?er verba defuturo^ without consummatioiiy 
might be released by mutual consent ; and it appears that the Spiritual 
Courts had not the power of effectually enforcing them, {b) But a 
present contract or a future contract, cum capuld^ could be carried 
into effect by those Courts. It was held not to be releasable, and 
formed a ground for aToiding a subsequent marriage with another 
person. In these respects, the consequences of a matrimonial contract 
corresponded with those of marriage; but an examination of the 
autliorities will show it to have been settled from a very early period, 
that until the contract was sanctioned by a religious ceremony, per- 
formed by a person in holy orders, it was incomplete ; that it was not 
held to constitute lawful matrimony, and that it did not confer the 
civil rights incident to that state. 

At one period, it seems to have been held that a scrupulous 
observance of the prescribed forms in the solemnization of matrimony 
was essential In Fitzherbert's Nat Brev. (c), it is s^d that a woman 
married in a chamber shall not have dower by the common law. 
*' Qu»re of marriages made in chapels not consecrated, for many are 
by licence of the bishops married in chapels, &c. : and it seemeth rea- 
sonable, that in such cases she shall have dower." So in Foxcroft's 
case (d)^ a man shortly before his death, and while infirm, and in his 
bed, was privately married to a woman then enceint by him; the 
marriage was performed by the bishop, but without the celebration of 
any mass : it was held to be void, and the issue adjudged a bastard. 
A similar case is mentioned as having occurred in 10 Edward 4. (e) 

But the strictness of these rules was relaxed, and it was afterwards 
generally agreed, that the ministration of a priest alone was sufficient 
to give the contract the essentials of a marriage in facie ecclesicBy and 
to confer the privileges of lawful matrimony. Thus it is laid down, 
that if a man and woman are married by a priest in a place which is 
not a church or chapel, and without any solemnity of the celebration 
of mass, yet it is a good marriage, and they are baron and feme. (/) 

In Weld V. Chamberlayne (^), the marriage was by a priest, but a 
ring was not used according to the book of common prayer. It was 

(a) See 2 Hagg. 66. (e) 4 Yin. Ab. 38, pi. 21 : see also 

(b) 2 Bum. Eccl. Law, 457; Swin- stat. 25 Hen. S. ch. 21, cited /m>«^ 
burne on Spousals, p. 232, edition of (/) 4 Yin. Ab. 38, pi. 21 : and see 
1686. Perk. 306 : Tarrj r. Browne, 1 Sid. 64; 

(c) 150, N. Wood's Institutes, p. 59. 
{d) 10 Ed. I. ; 4 Yin. Ab. 218, pi. 18. {g) 2 Show. 300. 

B B 2 



372 APPENDIX. 

doubted whether this informality might not vitiate the marriage, and 
a case was ordered to be made upon the point ; but the C3iief Justice 
Pemberton inclined to think it a good marriage, there being words of 
contract de prcBsenti^ repeated after a parson in orders. 

In the case of Holder v, Dickenson (a), on a motion in arrest of 
judgment in an action by a woman for a breach of promise of marriage^ 
Yaughan's opinion was against the plaintiff; and one of his reasons 
was, that a priest was requisite to the marriage, and that she ought 
therefore to have averred in the declaration, ** quod obtuUt se, in the 
presence of a parson." The other judges differed from Vaughan, not 
as to the necessity of the intervention of a priest, but as to the ne- 
cessity of introducing such an allegation into the declaration. 

It is laid down by Perkins (5), that if a man make a contract of 
matrimony with J. S. and die before the marriage solemnized between 
them, she shall not have dower, for she never was his wife. So also 
he says, that after a contract of matrimony between a man and woman, 
yet one may enfeoff the other, for they nre not one person in law ; 
and if the woman dieth before the marriage solemnized, the man 
shall not have her goods as her husband, (c) '^ And," he says, *^it hath 
been holden, that if a man contract himself unto a woman, et postea 
cognovit earn camalitery and afterwards he doth enfeoff the same woman 
of a carve of land, and puts her in seisin thereof, and afterwards nfar- 
rieth her in facte ecclesicB, that this feoffment is void, because that it is 
made postfidem datam^ et carnalem copulamy et sic tanquam inter virum 
et uxorem ; for that the marriage is subsequent, &o. But at this day, 
if such a feoffment be made, it is good enough. But after the mar- 
riage celebrated between a man and a woman, the man cannot enfeoff 
his wife, for then they are as one person in law." It is to be 
observed, that the case here put is that of a contract cum copula^ 
which, it is agreed, was of the same legal effect as a contract expressly 
per verba de prcBsenti. The earlier case referred to, in which it had 
been held that the feoffment made after the contract was avcHded if 
the parties intermarried, was probably founded on the notion that the 
subsequent marriage had relation back to the time of the contract ; a 
notion which was entertained by the civilians, and which was applied 
by them to legitimate children born before the marriage of their 
parents. 

(a) 1 Freem. 95 ; Carter, 233 ; 3 (ft) Sec. 306. 
Keb. 148. (c) Sec.ll>4, 



APPENDIX. 373 

In Lord Hale*8 notes to Co. Litt. (a), the following case is given : 
** A contracts per verba de pr<B8enti with B, and has issue by her, and 
afterwards marries C in facie ecclesice. B recovers A for her husband, 
by sentence of the ordinary, and for not performing the sentence he is 
excommunicated : and afterwards enfeoffi D, and then marries B, in 
fcxcie eccleneBf and dies. She brings dower and recovers, because the 
feoffment was per fraudem mediate between the sentence and the 
solemn marriage ; sed reversatur coram rege et concilio quia prcBdictus 
A nonfuit seisitusy during the espousals between him and B." Lord 
Hale adds, ^* Nota^ neither the contract nor the sentence was a 
marriage." 

In Bunting v. Lepingwel (^), A contracted matrimony with a 
woman per verba de prtesenti. She afterwards married B, and A then 
libelled against her upon the contract in the spiritual court ; it was 
decreed that she should marry A, and her marriage with B was de- 
clared null ; she accordingly married A, and had issue by him. The 
question was, whether the plaintifi^ one of the issue of this marriage, 
was legitimate; and it was adjudged in his favour. The objection 
was, that B was not a party to the suit in the spiritual court; 
and that the marriage with him having been solemnized in church, 
was voidable only, and not void ; and that it could not be dissolved, 
except by a sentence in a suit for that purpose, in which he should 
have been cited. The civilian who argued on the other side con* 
tended that by reason of the precontract the marriage with B was 
quasi null : after the contract, he said, the parties became baron and 
feme by the civil law, and their issue bom after the contract, and 
before marriage, were legitimate if a marriage followed ; if not, he 
admitted that issue bom after the contract were iUegitimate: and 
when the marriage followed, it had relation to the contract, and ren- 
dered an intermediate marriage void and adulterous : and by this re* 
lation, he contended that the marriage with A was sufficient to avoid 
the intermediate marriage with ^, even without a sentence : he also 
relied upon the effect of the sentence ; and according to Lord Coke, 
the case was decided upon tho ground that credit must be given to that 
sentence, as being on a matter peculiarly belonging to the cognizance 
of the Court which pronounced it. In this case, it was admitted that 
the contract did not render the subsequent marriage with another 
ipso facto void ; though it was said that such marriage became void 

(a) 33a, note 10. (b) Moor, 169 ; 4 Co. 29. 

BB 3 



874 APPENDIX. 

upon the contractiBg parties afterwards having intenuarried ; and It 
seems to have been always well settled^ that a precontract was one of 
those impediments which rendered the marriage voidable only^ and not 
ipso facto void ; and which^ on that account, could only be taken 
advantage of during the lives of the parties, (a) On the other hand, 
it was always well settled, that a marriage with one person, actually 
solemnized, rendered a subsequent marriage with another absolutely 
void. 

The position that issue bom after a contract per verba de prtt" 
senti are illegitimate, if the parents do not subsequently marry, was 
admitted in the above case of Bunting v. Lepingwel; and the 
doctrine of relation, by which the civil law gave a retrospective effect 
to the marriage as to questions of legitimacy, was not admitted by 
the common law. So, according to Godolphin, a chUd bom before 
marriage celebrated between the father and mother is called a bastard 
by the common law(&); and when the question of general bastardy 
was referred to the ordinary, the matter to be tried by him was, 
whether the party was born in lawful matrimony (c); the same 
expression which was used in cases of dower: it follows, that the 
same species of marriage was required to confer the rights of 
legitimacy as to confer the right of dower. 

In Faine's case(^, it was said in argument, that on a sentence for 
dissolution of a marriage, on the ground of precontract, the parties 
contracted became husband and wife by the sentence without 
further solemnity ; and an opinion given by Noy, in reading to that 
effect (e), was cited: but Twisden denied this, and said that the 
marriage must be solemnized before they could be oompletely baron 
and feme. 

In Hey don v. Gould (/), letters of administration of the wife's 
effects were granted to the husband ; the next of kin sued for a repeal, 
suggesting that there had been no marriage. The parties were 
Sabbatarians, and had been married by one of their ministers, using 
the forms of the common prayer except the ring, and they had 
cohabited till the woman's death. It appeared, however, that the 

(a) Co. Liu. 33 a.: 6 Co. 666. : see ^^ Hceres autemlegitimnsjntdlus baitiardta 
Hemming v. Price, 12 Mod. 432. 419 ; nee aliquis qui ex legitimo mairwumio nan 
aiicl Blackst. Comm. vol. i. p. 434. est procreahts, esse potest,*^ Lib 7, cb. 13. 

(b) Repertorium Canonicum^ chap. (d) 1 Sid, 13. 

XXV. pi. 2. (e) Dyer, 105 ft, note. 

(c) Ibid. pi. 6.; Ayliffe's Paregon, (/) 1 Salk. 119; 2 Burn. Eccl. Law, 
p. 109, edit, of 1726. So Glanville says, 472. 



APPENDIX 375 

minister was a mere layman^ and not in orders; upon which the 
letters of administration were repealed. Upon appeal, this decision 
was aflSrmcd by the delegates. The reason was said to be, that the 
man demanding a right due to him as husband by the ecclesiastical 
law, must prove himself a husband according to that law, to intitle 
himself in this case ; and that though perhaps the wife, who was the 
weaker sex, or the issue, who were in no fault, might intitle 
themselves by such marriage to a temporal right, yet the husband 
himself, who was in fault, should never intitle himself by the mere 
reputation of a marriage without right. It was argued, that this 
marriage was not a mere nullity ; that the contract was sufficient by 
the law of nature; and that though the positive law ordained that 
the marriage should be by a priest, that made such a marriage as this 
irregular only ; but that it was not void, unless the positive law had 
gone on and ordained expressly that it should be so. This argument, 
however, was overruled; and a case in Swinburne, where such a 
marriage had been ruled void, and the act of Parliament for confirming 
the marriages during the. usurpation, were referred to ; and it was 
Bud that the form of pleading marriage was ^per preAyterum sacrU 
ordinUms constitutunim 

In this case it was clear that the ceremony amounted at least to 
a contract per verba de prcBsentiy yet it was held not to confer the 
civil rights of a husband. This case was mentioned, in a recent 
judgment of Sir John NicholFs, as one in which the marriage, not 
being celebrated by a priest, was held to be a mere nullity, (a) Sir 
W. Wynne observed on it, that the marriage was one according to 
their own invention, and the Prerogative Court refused to ac- 
knowledge it. (ft) 

In Hervey o. Hervey(e), in a suit for jactitation of marriage, 
evidence was given that the parties had for eighteen years lived 
together, acknowledging each other, and being received as husband 
and wife. The Chancellor of London, notwithstanding this evidence, 
thought himself bound by the rules of the ecclesiastical law to 
pronounce against the marriage : the canons (he said) not allowing 
a marriage to be proved inter mvos^ by mere circumstantial evidence. 
His sentence was affirmed by the dean of the Arches. On appeal to 
the delegates, they decided differently, holding, tliat after such 
deliberate acknowledgment and avowal on the part of the husband of 

(a) 2 PhilL 21. (c) 2 W. BL 877. 

lb) 1 Hagg. App. 8. 

B B 4 



376 APPENDIX. 

the truth of the marriage, he could not be permitted to impeach it. 
In this case the question on which the Courts differed was, whether 
the marriage could be proved by evidence of this nature? It is 
obvious that this question could not have arisen if it had been 
supposed that a mere verbal contract could constitute a marriage: 
on that supposition, there could have been no doubt that an ac- 
knowledgment of the existence of the relation of husband and wife 
must be taken as direct evidence of a present contract, in the same 
manner as in the Scotch law. (a) 

The judgement of Sir E. Simpson, in Scrimshire v. Scrimshire (i), 
a case relative to the validity of a marriage celebrated abroad, which 
occurred shortly before the Marriage Act, forcibly illustrates the 
doctrine at that time adopted by the Ecclesiastical Courts. The 
marriage in question had been solemnized by a Koman Catholic 
priest according to the Roman ritual: the learned judge doubted 
whether even this species of marriage would be deemed perfect if it 
had taken place in England. He said, that ^^ as a priest popishly 
ordained is allowed to be a legal presbyter, it is generally said that a 
marriage by a popish priest is good; and it is true, where it is 
celebrated after the English ritual, for he is allowed to be a priest : 
but upon what foundation a marriage after the popish ritual can be 
deemed a legal marriage is hard to say. Indeed the canon law 
received here calls an absolute contract ipsum mainrimoniumy and will 
enforce solemnization according to English rites ; but that contract, 
or ipsum matrimonium^ does not convey a legal right to restitution of 
conjugal rights, though an English priest had intervened, if it were 
otherwise than according to the English rituaL Upon what reason 
or foundation then should a contract of marriage entered into by 
the intervention of a popish priest, not in the form prescribed by 
law, be deemed a legal marriage in this country, more than any 
other contract that is considered by the canon law as ipsum matrix 
monium f^{c) He then refers to a cade in Ireland, where a marriage 
by a Roman Catholic priest, according to the popish ritual, had been 
held valid, and questions the decision. *^ I apprehend, unless persons 
in England are married according to the rites of the church of 
England^ they are not intitled to the privileges attending legal 
marriages^ as thirds, dower, &c How can a bishop try or certify 
such a marriage? Can he certify that English subjects, residing in 

(a) See M'Adam v. Walker, 1 Dow, (b) 2 Hagg. 396. 
148. (c) Ibid. 400. 



APPENDIX. 377 

England, were lawfuUy married according to the laws of England^ 
if they were not married according to the rites prescribed by act of 
parliament for marriages in this country ? Would a contract only 
by the intervention of a Romish priest or any priest, be deemed a 
legal marriage? The Roman ritual not being the same with ours, 
such a ceremony is nothing more than a contract." (a) He afterwards 
remarks, that in the case before him there was *^ a fact of marriage 
by the intervention of a priest ; without which, undoubtedly, by our 
law, it cannot be a contract." (ft) 

The doubt here expressed on the question, whether the use of the 
established ritual be essential, appears to have been set at rest by 
other authorities, particularly by those relating to Roman Catholic 
marriages in Ireland and in England before the Marriage Act ; but 
the reasoning of the learned judge is important as showing that the 
necessity of the intervention of a priest in some form was a point 
then considered to be free from any doubt, and as pointing out the 
material difference in the view of the ecclesiastical law, between a 
marriage solemnized by a priest, and a contract which, though said 
to be ipsum matrimonium^ was not then supposed to confer the civil 
rights of property or the power of suing in the Ecclesiastical Courts 
for restitution of conjugal rights. It explains the meaning of the 
expression ipsum matrimanium, as applied to a contract, and shows 
that that expression did not imply that such contracts possessed the 
qualities, or produced the consequences, attending a marriage duly 
solemnized. It was taken to be clear that a contract without solem- 
nization was not a legal marriage ; the only doubt was, whether it 
was essential that one particular form of solemnization should be 
followed. 

In a case (c) which occurred before Lord Stowell in the year 1820, 
his Lordship observed that it was a generally accredited opinion that if 
a marriage was had by the ministration of a person in the church, 
who was ostensibly in holy orders, and was not known by the parties 
to be otherwise, such marriage should be supported: parties who 
came to be married were not expected to ask for a sight of the 
minister's letters of orders ; and if they saw them, they could not be 
expected to inquire into the authenticity. The case put supposed the 
general rule to be, that the intervention of a priest is a matter of 
necessity : and if this was the rule at that time, it must have been 

(a) 2 Hagg. 402. (c) Hawke v. Corri, 2 Hagg. 280. 

{b) Ibid. 404. 288. 



^78 APPENDIX. 

equally so before the Marriage Act of 26 Gleo. 2. ; for tbere was 
nothing in that act which could be construed to be introductive of 
any new rule on this point : the direction that the solemnization shall 
be according to the rubric is not enfon2ed by the dause of nullity. 
The only grounds of nullity of marriage introduced by that act, were 
the want of a license duly obtained, or of publication of banns, or the 
solemnization not taking place in a church or chapel : the circum- 
stance of the ceremony not being performed by a person in holy 
orders is not made a ground of nullity : the other clauses of the act 
4ire only directory, the non-observance of them not affecting the 
validity of the marriage. 

In cases of matrimonial contracts, it was the practice of the Eccle- 
siastical Courts, till their power of entertaining suits founded on such 
contracts was taken away, to decree the party defendant to solemnize 
the marriage in facie eccIesicB (a), a practice which shows that the 
marriage was not considered to be complete for all purposes until the 
ceremony was performed. On the other hand, where the marriage 
had once been solemnized by a priest, whatever circumstances of 
irregularity or clandestinity might have attended it, no idea seems to 
have been entertained of requiring the ceremony to be reiterated. 
Ecclesiastical censures or other penalties might be incurred (^), but 
the marriage was deemed to be complete. 

It appears from the judgment in Scrimshire v. Sciimshire (c), before 
referred to, that when the matter rested in contract only, it could not 
be made the foundation of a suit for restitution of conjugal rights, 
and the ceremony was therefore essential to confer the chief privileges 
of marriage. From other authorities, it seems that by the law of the 
Ecclesiastical Courts, the cohabitation of parties who had entered into 
a matrimonial contract was not permitted until the solemnization in 
facie eccksicB : and intercourse between them in the mean time was 
punishable by ecclesiastical censures (cQ: it was said indeed to be 
punished not as fornication, but ^ & contempt of the laws of the 
church. 

The text writers, who have considered this subject, agree in the 



(a) Ougliton Tit. 209, etseq, : 2 Hagg. Hagg. Appendix 9, note ; and Oughton 
82. Tit 193. 

(b) See Middleton o. Croils, 2 Atk. (d) See More, 170: 6 Mod. 155 : 3 
650 ; Cas. Temp. Ilard. 57 : More r. Lev. 376 : Irish statute 1 1 Geo. 2. 
More, 2 Atk. 157. chap. 10, sec. 3, cited post, 

(c) See also Green v. Green, cited 1 



APPENDIX. 



879 



neceflsity of a solemnization to confer the civil rights of marriage. 
Swinburne lays it down^ that spousals de prasenti, without solemniz- 
ation do not according to the law of England render the issue legitimate 
or give to the wife the right of dower^ or to the husband the right of 
property in the wife's goods, or of administrating to her. (a) The 
^ame doctrine is stated by Ayliffe (b), and in Bacon's Abridgment, (c) 

So Dr. Bum says, that if the temporal courts write to the bishop 
to certify whether accoupled in lawful matrimony or not, it seems that 
the bishop would certify that persons not married according to the 
forms of the church of England as by law established, were not ac*- 
coupled in lawful matrimony ; and that if a person applies to the 
spiritual court for any benefit by the ecclesiastical law in virtue of a 
precedent marriage, it seems that he ought to intitle himself according 
to that law. (d) In Shepherd's Epitome, it is liud down that marriage 
is not accounted consummate by our law till it be celebrated and 
solemnized in facie ecclesiiB {e), sjxd that the woman, when espoused 
or contracted, is not reputed a feme covert till married in facie 
ecclesi(B, (jf ) 

A more recent writer, treating of the law of Ireland (y), considers 
the intervention of a person in orders as necessary to constitute a legal 



(a) P. 2. 15. 284, 235. 
(6) Faregon, p. 245. 

(c) Tit. Marriage, C. 

(d) Ecclesiastical Law, 1st Ed. 1763, 
vol. 2, p. 29. 

(e) P. 720. 
(/) P. 722. 

{g) The general matrimonial law of 
Ireland is the same as that of England, 
except 80 far as changes have been in- 
troduced by the difference between the 
statute law of the two countries. See 1 
Addams, 65. The English Marfiage 
Act was not extended to Ireland ; but 
by the Irish statute 9 Geo. 2. chap. 11, 
marriages and matrimonial contracts of 
minors, without proper consent, may be 
annulled by the Ecclesiastical Courts, if 
either of the parties be intitled to a real 
estate of 100^. per annum, or personal 
estate of the value of 500/. ; or if the 
father or mother of the minor be in pos- 
session of real estate of 100/. per annum, 
or personal estate of the value of 2000/. ; 
and provided that a suit be commenced 



within a year by the father or guardian 
of the minor, and prosecuted with effect. 
The Irish statute 12 Geo. 1. chap. 3, 
enacted, that a marriage consummated 
should not be set aside on the ground of 
a pre-contract witiiout consummation : 
the power of enforcing matrimonial con- 
tracts, with this qualification, subsisted 
till the statute 58 Greo. 8. chap. 81. 
The other statutes, as to marriages in 
Ireland by Roman Catholic priests and dis- 
senting ministers, are noticed in the subse- 
quent pages. [By sec. 50. of the 7 & 8 
Vic. c. 8], the Irish statute of 9 Geo. 2. 
is repealed; and by sec. 51. the guilty 
party is to forfeit all property accruing 
from the marriage, as in 4 Greo. 4. c. 76. 
The statute now in force as to marriages in 
Ireland is the7&8yic. c. 81, amended 
by the 9 & 10 Vic. c. 72. By the 8 & 9 
Vic. c. 54, provision is made for the 
celebration of marriages, until a parish 
church is erected, in any disunited or 
newly-erected parish.] 



S80 A1»PEND1X» 

marriage with reference to civil rights, (a) He puts the case of a 
marriage celebrated by a layman disguised as a clergyman; in. which, 
he says, it seems that a solemnization in facie ecclesicB should be 
decreed, because, though not properly a marriage, it is a contract de 
prmsentL {b) 

In a late case in the Arches Court, where the matrimonial law of 
Ireland came in question, the evidence speaks of solemnization by a 
priest as one of the essentials to a legal marriage, (c) 

The diiFerent statutes relating to the subject of marriage concur in 
showing, more or less pointedly, that this view of the essential dis- 
tinction between perfect marriages and mere contracts has uniformly 
prevailed. 

When the statute 25 Hen. 8. chap. 21, transferred to the Arch- 
bishop of Canterbury the power of granting those licenses and dis- 
pensations which had previously been obtained from Rome, it was 
thought necessary to enact that children procreated after solemnization 
of marriage by virtue of such licenses or dispensations, should be 
deemed legitimate in all Courts, as well spiritual as temporal, and 
should be capable of inheriting. This clause must have been founded 
upon an opinion, that a compliance with all the canonical regulations 
might be indispensable. 

The statute 32 Hen. 8. chap* 38, '^for marriages to stand not- 
withstanding precontracts,^' distinguishes in its language between 
contracts and marriages, speaking of the latter as the true matrimony 
contract and solemnized in the face of the church. In like manner, 
the statute 2 & 3 Edward 6. chap. 23, which repeals this act, 
empowers the ecclesiastical judges, on proof of a contract of marriage, 
to give sentence for matrimony, commanding solemnization^ cohabi- 
tation, &c 

After the restoration of Charles 2., it was enacted, by the statute 
12 Car. 2. chap. 33 (cf), that marriages, which, during the usurpation, 
liad been solemnized before justices of the peace according to the 
parliamentary ordinances, should be of the same force and eiFect as 
if they had been solemnized according to the rites and ceremonies 
established or used in the church or kingdom of England. It was 



(a) View of the Civil Law, by Dr. LuiBngton, Burr. Sett. Cases, 232, cited 

Browne, professor of Civil Law at Dub- post 
lin, vol. i. pp. 74, 75, 2nd ed. (c) Bruce v. Burke, 2 Addams, 471. 

(6) Ibid. pp. 53, 54. See Hawke ». (d) Confirmed by stat. 13 Car. 2» 

Corri, cited ante^ p. [377] : and Rex r. chap. 11. 



APPENDIX. 381. 

provided, that issues on the point of bastardy or lawfulness of marriage 
depending on these marriages, should be tried by a jury. 

By the act of 6 & 7 WilL 3. chap. 6, certain duties to be paid on 
marriage were granted to the crown for five years. The 63d section 
enacted, that all persons commonly called Quakers, or reputed such, 
and all papists, or reputed papists, whether they were popish recusant 
convicts or not, and all Jews, or any other persons, who should cohabit 
and live together as man and wife, should pay the duties thereby 
granted, as they ought to have done by virtue of the act if they had 
been married according the law of England, to be collected in the 
same manner. And upon every pretended marriage which should be 
made by any such persons within the said term of five years, according 
to the method and forms used amongst them, the man so entering into 
such pretended state of matrimony was within five days to give notice 
to the collectors, on pain of forfeiting five pounds. The next section 
provided, that nothing therein contained should be construed to make 
good or efiectual in law any such marriage or pretended marriage, 
but that they should be of the same force and virtue, and no other^ 
as they would have been if the act had never been made. 

The 52d section of this act, and the subsequent statute 7 & 8 
Will. 3. chap. 35, impose penalties on clergymen celebrating marriage 
without banns or license ; and by the 4th section of the last act, the 
man so married was to forfeit lOZ. The object of these clauses was 
the better collection of the duties. The duties, except those upon li- 
censes, appear to have expired previous to the statute 10 Ann. chap. 19, 
the 176th section of which recites, that great loss had happened to 
the duties already laid upon stamped vellum, parchment, and paper, 
and that other inconveniences daily grew from clandestine marriages ; 
and imposes a penalty of 100/. on any parson, vicar, curate, or other 
person in holy orders, celebrating a marriage without banns or license. 
These clauses apply only to marriages performed by the intervention 
of clergymen : they would have been nugatory if marriages could 
have been constituted without that intervention. 

The Irish statute 19 Geo. 2. chap. 13, declares null marriages per- 
formed by popish priests, if the parties, or either of them, be protes- 
tant ; but if the intervention of the priest was not essential, this 
statute also would be nugatory in cases where the parties cohabited 
as husband and wife ; the acknowledgment of that relation would, 
as in Scotland, constitute a legal marriage independently of the 
ceremony. Yet it does not appear to have been doubted, that in 



382 APPENDIX. 

cases within this statute the nullity of the original cei^emony was 
fatal, (a) 

Another Irish statute, 11 Geo. 2. chap. 10, sec. 3, recites that 
several protestants Assenting from the church of Ireland as by law 
established, scrupling to be married according to the form of ceremony 
prescribed by the said church, did therefore frequently enter into 
matrimonial contracts in their own congregations, before their ministers 
or teachers, and thereupon lived together as husband and wife, and 
it enacts, that for the ease of such protestant dissenters who had 
already entered, or should thereafter enter, into such matrimonial 
contracts, and thereupon live together as husband and wife, that they 
should not be prosecuted in any ecclesiastical court, ex officio meroy or 
<m the presentment of any minister or churchwarden of any parish, 
for or by reason of their entering into such matrimonial contracts, or 
for their living together as husband and wife by virtue of such contracts, 
provided such protestant dissenters, and such minister or teacher, had 
or should take the oaths and subscribe the declaration according to the 
statute 6 Geo. 1. chap. 5. 

It will be observed, that in this act the term matrimonial contracts 
18 carefully adopted in speaking of marriages by dissenting ministers ; 
and without affirming or implying their legality, they are only ex- 
empted from censure. The immunity thus granted was extended by 
the statute 21 & 22 Geo. 3. chap. 25 (Irish), which recites that the 
removing any doubts that might have been entertained concerning the 
validity of matrimonial contracts or marriages, entered into by pro- 
testant dissenters, and solemnized by protestant dissenting ministers 
or teachers, would tend to the peace and tranquillity of many protes- 
tant dissenters and their families ; and it then declares and enacts, that 
all matrimonial contracts or marriages theretofore entered into between 
protestant dissenters, and solemnized or celebrated by protestant dis* 
senting ministers or teachers, should be, and should be held and taken 
to be good and valid to all intents and purposes whatsoever : and that all 
parties to such marriages, and all persons claiming under them, should 
in virtue of such marriages be and be deemed, adjudged, and taken as 
intitled to all rights and benefits whatsoever, from, under, or in conso* 
quence of such marriages, in like manner as if such marriages had been 
solemnized by a clergyman of the church of Ireland. [(A)] 

(a) See Dowling ». Constable, Irish [(ft) As to marriages of Presbyterians, 

Term Rep. 259 : Steadman v, Powell, or protestant dissenters in Ireland, see 

1 Addams, 58: Bruce v. Burke, 2 5 & 6 Vic. c. 113, 6 & 7 Vic. c. 39, 

Addams, 471. 7 & 8 Vic. c. ^l sec. 4. & 83. By the 



APPENDIX. 



383; 



A late statute (a) for regulating marriages in Newfoundland begins 
bj reciting that a doubt had arisen whether the law of England re- 
quiring religious ceremonies in the celebration of marriage to be per- 
formed hj persons in holy orders, for the perfect validity of the 
marriage contract, be in force in Newfoundland : it enacts that mar- 
riages in that colony, not performed by clergymen, shall be Toid. (b) 

The opinion of the necessity of the intervention of a priest recently 
led to another act, relative to marriages in the British territories in 
the East Indies. It had been usual for members of the church of 
Scotland, resident in that country, to be married by ministers of 
their own church. But Presbyterian ministers not receiving episcopal 
ordination, are not, according to the English law, deemed to be in 
holy orders ; and it had been held that natives of Scotland, resident 
in India, were to be considered as having an English domicile, (c) It 
therefore became doubtful whether these marriages were not to be 
governed by the English law, according to which they would have 
stood upon the same footing as contracts de prcBsenti before the Mar- 
riage Act. The statute 58 Geo. 3. c. 84, reciting the doubt on this 
point, confinqs the marriages thus celebrated, giving them the same 
effect as if they had been solemnized by clergymen of the church of 
England, according to the rites and ceremonies of the church of Eng- 
land. 

The general opinion which prevailed in England before the 
Marriage Act, of the necessity of solemnization by a priest, appears 
also from the manner in which clandestine marriages were then con- 
ducted. It is well known that at that period such marriages were 
performed by some disreputable members of the clerical profession. 



8 & 4 W. 4. c. 102, certain penal enact- 
ments made bj the Irish parliaments 
against Roman Catholic clergyman for 
celebrating marriages were ]:epealed.] 

(a) 57 Greo. 3. chap. 51. 

(b) This act was repealed by the 
statute 5 Geo. 4. chap. 68, which is to 
continue in force for five years, and by 
which any teachers or preachers of reli- 
gion, licensed by the goyernor or a secre- 
tary of state, are empowered to celebrate 
marriages in the colony, in places where, 
by reason of the difficulty of internal 
communication, it may \}e inconvenient 
to attend at a church or chapel of the 
established church of England. [The 



5 Greo. 4. c. 68. was continued by the 
subsequent acts of 10 Geo. 4. c. 17, and 
2 & 3 W. 4. c. 78. It has since been re- 
pealed by Stat. 3 & 4 W. 4. c. 10. of the 
colonial parliament (in pursuance of 
power given by 2 & 3 W. 4. c. 78. sec. 1 .), 
which enacts that all marriages are to be 
celebrated by persons in holy orders, or 
by any resident minister publicly re- 
cognised as the pastor and teacher of 
any congregation having a church or 
chapel, or employed as teachers or 
preachers licensed by the governor.] 

(c) Bruce r. Bruce, 6 Bro. P. C. 566, 
ed. Toml.; 2 Bos. & Pull. 229 s.: 
Monroe v. Douglas, 5 Mad. 379. 



384 APPENDIX. 

who were to be found at the Fleet Prison, May Fair, and some other 
places* There would, however, have been no reason for procuring, 
in these cases, the ministration of a clergyman, if the purpose could 
have been equally well effected by a private contract, which would 
have been attended with less inconvenience, delay, and expense, and 
would, at the same time, have evaded the legal penalties. The 
marriage shops, as they were sometimes termed, would not have been 
resorted to ; and the services of the Fleet parsons and their runners (a) 
would have been superfluous. 

The same opinion pervades the debates in Parliament, on the intro- 
duction of the Marriage Act* Lord Mansfield, then Solicitor-General, 
is represented to have said, '^ I believe it will be allowed, that if a man 
and woman seriously and sincerely enter into a marriage contract, 
without the interposition of a clergyman or any religious ceremony 
whatever, it will be a good marriage, both by the law of God and the 
law of nature ; yet the law of this society, and, I believe, of every 
other Christian society, has declared it not to be a good marriage ; 
therefore, why may not we declare those marriages to be void which 
are solemnized by scandalous, worthless clergymen, in a clandestine 
manner ?"(&) Similar ideas were expressed by the other speakers; 
they agree in ascribing the mischief then complained of to the mis- 
conduct of some exceptionable characters amongst the clergy, not 
alluding to any possibility of affecting a clandestine marriage without 
their assistance. The act itself appears to have been framed with the 
same view : it does not nullify contracts de prasentiy or declare that 
they shall not be deemed marriages ; the enactment that they should 
not be enforced* by compelling solemnization, was thought sufiicient 
to take away their effect* 

The same view must have led to the late statute (c), which, using 
the same terms as the English Marriage Act, takes away from the 
Ecclesiastical Courts in Ireland the power of enforcing contracts of 
marriage per verba defuturOy or per verba de prcesenti. If a contract 
de prcBsenti was in itself a marriage, without any solemnization, it 
would be merely nugatory to prevent the solemnization from being 
enforced* 

In the practical application of the ancient law, some distinctions, 
with reference to the mode of trying and determining the validity of 

(a) See 2 Atk. 158. (c) 58 Geo. 3. chap. 81. sec. 3. 

(b) Parliamentary History, vol. 15, 
p. 78. 



APPENDIX. 385 

marriages, arose from the different modes in which the question was 
brought forward, and from the difference of the tribunals before which 
it came. 

There were some few cases in which the issue upon the plea ne 
ungues accoupUy &c., instead of being referred to the bishop, was tried 
in the Courts of common law bj a jury (a) ; and^ with respect to 
bastardy, there were more extensive exceptions to the general rule, 
which required a trial by certificate, {b) In these excepted cases, 
however^ the issue tried by the jury was the same as that which, in 
general, was referred to the bishop ; and it does not appear that there 
was any difference between the two modes of trial, with reference to 
the species of marriage necessary to support the issua 

In other oases, the question of marriage came before the courts of 
common law in a different form from that in which it presented itself 
to the ecclesiastical tribunals. The issue to be tried was, whether A 
waa married to B, or whether A was the wife of B (a) ; and in these 
cases it was held, that what was termed a marriage de facto was 
sufficient to support the issue : the lawfulness of the marriage did not 
come in question ; and it was not necessary to show, as on the issue 
of ne ungues accouple, that there had been a marriage secundum leges 
eccksicB. (d) Thus the marriage de facto was valid at law, where it 
came in question in actions not admitting of a plea disputing its 
lawfulness. This leads to the inquiry into the distinction between a 
lawful marriage, and that which was termed a marriage c^^c^o ; and 
it will be seen from the cases, that the latter phrase was generally 
applied to marriages which were open to legal objection, not from 
the want of the requisite solenuiities, but from impediments rendering 
them liable to be dissolved, {e) Thus, marriages which were voidable 
on the ground of consanguinity, affinity, or precontract, or which, on 
the ground of nonage, were voidable by disagreement, were termed 
marriages de facto, bxlA were held valid at law until dissolved. But 
in the spiritual courts objections of this kind were, during the lives of 
the parties, fatal to the legality of the marrige. It is in this sense that 
Lord Coke contrasts marriage de jure and marriage de facto : the 

(a) 21 Vin. Ab. 44, pL 17. 21 ; Cro. son, Andrews, 227 : see 1 Lev. 41 ; 
Jac. 102 ; 1 Lev. 41 ; Ilderton ». Ilder- Ventr. 77. 

ton, 2 H. Bl. 145. (d) 1 Show. 50. 

(b) 21 Vin. Ab. 45. (c) See Co. Litt. 32a, 33&. ; Leigh v, 

(c) Allen V. Gray, 1 Show. 50 ; Salk. Ilanmer, 1 Leon. 53 ; Fenner's case, 
437 ; Comb. 131 ; Norwood v. Steven- Owen, 25 ; Dyer, 3686. 

VOL. II. C C 



386 APPENDIX. 

latter^ unless dissolved during the husband's life^ being valid for the 
purpose of conferring dower, on the ground that the spiritual courts 
were not then permitted to avoid it (a) : and the term marriage de 
facto is used in the same manner by Lord Holt, in Hemming v. 
Price. (6) It seems, therefore, that the distinction between 
marriage de jure and marriage de factOy which was sufficient to 
support the issue in the common-law courts, did not turn upon the 
mode of solemnization. In Weld v. Chamberlajne (c), where the 
issue was marriage or no marriage, it was assumed that proof of due 
solemnization was necessary. 

The term marriage de facto has, however, occasionally been applied 
to marriages celebrated without the intervention of a priest ; and ac- 
cording to some opinions, marriages of that description were sufficient 
for the purposes of many personal actions ; and there are some cases 
which apparently sanction this view. 

A case (d) at Nisi Frius has been cited, in which it is said that 
a Quaker marriage was held sufficient to support an action for criminal 
conversation; and the same point, with respect to an Anabaptist 
marriage, was decided as Nisi Frius by Mr, J. Deni^on, in a case (e) 
mentioned by Buller, who gives this explanation of it. '^ It has been 
doubted whether the ceremony must not be performed accoi*ding to 
the rites of the church ; but as this is an action against a wrong^doer 
and not a claim of right, it seems sufficient to prove the marriage ac* 
cording to any form of religion, as in the case of Anabaptists, Quakers, 
Jews, fta" 

It is probable that these cases may have proceeded upon the distinc* 
tion that, as against a wrong-doer, possession is sufficient for most 
purposes, without strict evidence of legal right: at the time when 
they occurred, it had not been decided that presumptive evidence of 
the marriage would not support this action. (/) Indeed, if marriages 
of this kind were looked upon merely as contracts de prtBsentiy they 
still formed an indissoluble bond, and gave to the husband an 
inchoate right to the enjoyment of the woman's society ; her seduction 



•(a) Co. Litt. 52 cr, 33 J. : see Elliott the case of Deane v. Thomas, 1 Mood.& 

V. Gurr, 2 Phill. 16. M. 361.] 

(b) 12 Mod. 432. (e) Woolston v. Scott, Bull. N. P. 

(c) 2 Show. 300. 28 : see Douglas, 166. 

(d) I Hagg. Appendix 9, note, [A (/) Morris p. Miller, 4 Burr. 2057 ; 
Quaker marriage was held at Nisi Prius I W. Bl. 632. 

suflicicnt to support such an action in 



APPENDIX. 887 

was, therefore, an injury to him, for which it might reasonably be 
held that he should have a remedy by action. Lord Hale, in a note, 
where he speaks of contracts de prcBsenti, and of marriages imperfect 
by reason of nonage, puts a qusere, ** whether husband shall have 
trespass de tali uxore abductdf**(a) 

From a note of Lord Keeper Guilford (taken when at the bar), 
given in his life by North (6), it appears that in the time of Lord 
Hale, a special verdict was found on a Quaker's marriage. The 
circumstance is mentioned by Guilford, only as an instance of the 
partiality towards the popular and sectarian parties, which he im- 
puted to Hale. " This was gross," he says, " in favour of the worst 
of sectaries ; for if the circumstances of a Quaker's marriage were 
stated in evidence, there could be no colour for a special yerdict ; for 
how was a marriage by a layman, without the liturgy, good within 
the acts that establish the liturgy ? The slur, in such cases, used to 
be this: in evidence, a cohabitation, and owning the children, as 
man and wife, passeth, without entering into the question of right, 
that properly belongs to anoth^ jurisdiction But here, though the 
right was debated, and could not be determined for the Quakers, yet 
a special verdict upon no point served to baffle the party that would 
take advantage of the nullity." Burnet, in his life of Hale, mentions 
this case ; and states that it was an action against a Quaker for debts 
owing by his wife before he married her; the defendant's counsel 
insisted that the marriage was not legal ^* Hale," he says, ** de- 
clared that he was not willing, on his own opinion, to make their 
children bastards, and gave directions to the jury to find it special." 
It does not appear whether the case proceeded further. Burnet says 
that Hale ^^ considered marriage and succession as a right of nature, 
from which none ought to be barred, what mistake soever they might 
be under in the points of revealed religion ; " and that ^^ all marriages 
made acccMrding to the several persuasions of men ought to have their 
effects in law." But the course which he took shows that he did 
not consider it to be settled that the law of England adopted these 
liberal opinions: or that it would, even as against the husband, 
sustain a marriage not duly solemnized. 

In another case at Nisi Prius in 1681, a Quaker marriage is said 
to have been held valid in an action of ejectment, (c) These two 



(a) Co. Litt. 33 a, note 10. (c) 1 Ilagg. Appendix 9, riote, 

(A) Vol. 1, p. 126. 

CO 2 



388 APPENDIX. 

cases occurred at a time when some uncertainty may naturally have 
arisen from the various changes which the ecclesiastical laws had 
recently undergone. 

It has been i^aid^ that marriage de facto^ or in reputation (as 
amongst the Quakers), has been allowed by the temporal courts to 
be sufficient to give title to a personal estate, because the lawfulness 
of the marriage is not in issue, for that the issue is^ whether a 
marriage was contracted or not, or whether the parties liv^d in a 
married state, the legality of it not eoming in question, (a) 

From the phrase of marriage de facto, or in reputation, here made 
use of, it may be inferred that this opinion alludes to cases where 
marriages not solemnized, ^o as to be valid according to the eccle* 
siastical law, have been established in the temporal courts by 
evidence of reputation in the maimer mentioned in the aboye note of 
Lord Keeper Guilford. Proof of cohabitation, acknowledgment, 
and reputation, introducing a presumption that there h^d been in 
some way a legal marriage, would in many proceedings be sufficient* 
And by this species of indirect and presumptive evidence, the 
marriage might be held to be proved for the purpose of the action, 
without breaking in upon the general rule of law, that a solemnization 
in facie ecclesice was necessary to produce the civil effects of matri- 
mony. 

The opinion just quoted points at a distinetion in this respect 
between real and personal property ; and in Haydon v. Gould, a dis-' 
tinction was suggested between the case of the husband, and that of 
the wife and children. (6) The latter suggestion might possibly have 
been influenced by the doctrine of the canon law, according to which 
it seems that the issue of a void marriage might be legimate, if the 
parents, or either of them, had entered into it bona fide, and without 
notice of its invalidity (c): if this was the reason, the invalidity of 
the marriage was admitted. This doctrine of the canon law was not, 
however, adopted in England, at least not by the temporal courts ; 

(a) Wood's Institutes of the Laws of married anotlier who was ignorant of 

England, p. 59. the first marriage ; the question was 

(6) See also 1 Leon. 53. whether a child of the second marriage 

(c) A case before the Court of Ses- was legitimate, on account of the hona 

sion, in 1811, led to a learned discussion fides of the father. The opinions of the 

on this branch of the canon law, and on judges were equally divided. See Re- 

the question whether it formed part of port of a Case of Legitimacy under a 

the law of Scotland. A woman privately Putative Marriage, &c. By Robert Bell, 

married to one man, during his life Esq. Edinburgh, 1825. 



APPENDIX. 389 

and it Is therefore more probable, that the notion of a marriage not 
duly solemnized, being valid with reference to some civil rights, 
though not valid with reference to others, originated in the diflference 
between the species of evidence requisite in different forms of pro- 
ceeding. The admissibility, and the effect of indirect evidence 
offered to prove a marriage, would depend upon the nature of the 
suit, and the situation of* the parties. Thus, in one case it was held, 
that presumptive evidence could not be received to prove a marriage 
iJiter vivos (0)9 and at present such evidence, though sufficient for 
most purposes, is not allowed in actions by the hu&band for criminal 
conversation, (i) And where evidence ot this kind is received, it has 
of course greater or less weight, according to the parties between 
whom the question arises. If the husband were defendant, as in the 
case before Ilale, his simple acknowledgment would, primd facie, be 
sufficient: some further proof would be required on a question of 
legitimacy ; but still circumstantial evidence would be received, the 
children not being held to the strict proof, which is required of the 
husband when suing on a right founded on the marriage. This is 
probably what wa» meant in Haydon v. Gould, when it was said 
that the husband could not intitle himself by the mere reputation of 
man*iage, though it might perhaps be different with the wife and 
children. 

These considerations show, that cases in which the civil benefits of 
matrimony have been obtained in the temporal courts, through the 
medium of marriages not solemnized, so as to be valid according 
to the ecclesiastical law, are rather to be referred to the rules of evi- 
dence than to any difference between the law on this subject as ad- 
ministered by these tribunals. The authorities before adduced, which 
agree that, according to the common law, the civil effects of marriage 
did not follow without a solemnization in facie ecclesitB, are decidedly 
inconsistent with the idea, that tb^ validity of the marriage could be 
properly recognized by the temporal courts, unless a solemnization 
was either directly proved or inferred from circumstances. It does 
not, indeed, appear that any distinction was acknowledged between 
the temporal and spiritual law, with respect to marriage and legiti- 
macy, excepting in the former not permitting a voidable mar- 
riage to be dissolved after the death of either of the parties, and not 

(a) Ilervey v. Hervcy, cited ante^ p. (b) Morris v. Miller, 4 Burr. 2057 ; 
[375.] 1 W. Bl. 632. 

CC 3 



890 APPENDIX. 

allowing a subsequent marriage to legitimate the issue. With these 
exceptions, the law of the ecclesiastical courts was referred to as the 
proper criterion for the decision of such questions, of which it was ad- 
mitted to have the sole original cognizance. In some cases (e, g. 
dower and general bastardy), those Courts were directly appealed to : 
in others, where the common-law courts undertook the inquiry, their 
rules of evidence might be different ; but it is clear that they professed 
to acknowledge the same rules of law which prevailed in the spiritual 
courts : they received the sentences and certificates of those tribunals 
as conclusive authorities, when applying directly to the same 
question (a) ; and there could be no ground upon which the adjudica- 
tion of one court could be adopted by another, unless it had also 
adopted the principles of law on which that adjudication was founded. 
It follows, that in whatever way the question of the validity of a 
man*iage might occur, the ecclesiastical law was equally the guide ; 
if the marriage was shown to be such as that law did not recognise, it 
could not be supported by the temporal courts ; and, therefore, be- 
tween whatever parties the point might arise, and whether it was tried 
in a suit for administration, in a real action, or in ejectment, the 
law applied to it was the same, though the different effect which the 
same evidence would have in different modes of proceeding would 
frequently lead to different results. 

The doubts which have been entertained upon this subject appear 
to have arisen chiefly from the language commonly made use of by 
the civilians and canonists, and thence occasionally adopted in the 
common-law courts. According to the doctrines of the civil law, 
mutual consent alone was sufficient 'to constitute marriage (&); and 
the canon law followed the same notion to the extent of holding that 
the contract of the parties was the essence and substance of the ma- 
trimonial union, and it was therefore commonly styled ipmm matrix 
moniunu It was held, that the vinculum was complete by the con- 
tract, and that it formed a marriage in foro conscienticB ; and as the 
spiritual courts possessed the power of completing it, by enforcing 
solemnization, it had, for most of the purposes of their jurisdiction, 

(«) SeeLordChief Justice De Grey's quences ih respect of property to mar- 
judgment in the Duchess of Kingston's riages constituted by consent alone as to 
case, State Trials, vol. xx. p. 5S7. the tolennes nuptia. See Taylor's Civil 

(b) The law of Rome, however, ad»- Law, 266, etseq., first edition. Browne's 

mittcd of several species of marriage. Civil Law, vol. i. p. 51. 71. 
and did not attach the same civil conse* 



APPENDIX. 891 

the some consequences during the lives of the parties, as a maiTiage 
duly solemnized. But although the contract was, in many of its 
practical effects, only slightly distinguished from marriage ; and al- 
though for these reasons the term ipsum matrimonium was applied to 
it, yet that expression was not used as denoting that the contract 
alone constituted a complete and perfect marriage, equivalent to that 
which had been ratified by the observance of religious rites. It was 
the substance without the form. The passage extracted above, from 
the judgment in Scrimshire v. Scrimshire, shows that the phrase ipsum 
matrimonium was thus understood in our ecclesiastical courts. It is 
in the same sense that the expressions to be found in some other 
cases must be understood. 

In Collins v. Jessot (a), Lord Holt is reported to have said, 
according to Salkeld, that a contract/?^ verba de prcssenti is a mar- 
riage, and not releaseable. The other reports of the case, which give 
his judgment at greater length, represent him to have said, that the 
contract amounts to an actual marriage, which the parties themselves 
cannot dissolve by release or mutual agreement ; fcM: it is as much a 
marriage in the sight of God, as if it had been in faeie eeclesi<B: he 
added, that there was this difference, that if they cohabited before 
marriage in facie ecclesuBy they were for that punishable by ecclesias* 
tical censures; and that if, after such contract, either of them lay 
with another, they would punish such an offender as an adulterer. 
It is plain that this was not intended to imply that the contract 
constituted a legal marriage for all purposes ; it is spoken of as a 
marriage in the sight of God, but as differing from a union legally 
complete in the most important particular. 

In Wigmore's case (&), the same expression, that a contract de prtB^ 
senti is a marriage, is attributed to Lord Holt, and was no doubt used 
in the same sense. He is said to have added, that the ecclesiastical 
courts could not punish for fornication after such a contract, which, 
however, is inconsistent with the last case, unless it refers to 
the distinction, that the censure was inflicted as a punishment for a 
contempt. 

It is to be observed of both of these cases, that they did not involve 
the question. They were motions for prohibitions to the spiritual 
courts ; and the only question, therefore, was, whether the matters 

(a) 2 Salk. 437 ; 6 Mod. 155 ; Uolt, (b) 2 Salk. 437 ; Holt, 459. 
458. 

« 

c c 4 



392 APPENDIX. 

were of ecclesiastical cognizance^ as to which there could be no doubt. 
Collins V, Jessot was a suit on a matrimonial contract. Wigmore's 
case is said to have been a suit for alimony ; but on this point the 
report is defective, as suits for alimony alone are not allowed : tlie suit 
is always for some other purpose, as incidental to which, alimony is 
granted, (a) But whatever the direct object of the suit may have been, 
it was plain that, as far as it depended on the question of marriage, 
the ecclesiastical court was the proper tribunal : and the observations 
of Holt on this point can therefore only be looked upon as dicta. 

These two cases, and that of Haydon v. Gould (6), were referred to 
in Rex v. Luffington (c), where the question was, whether a marriage 
sobmnized by a person, who at the time was erroneously supposed to 
be in orders, was sufficient to give the wife a settlement in the hus- 
band's parish. The question was similar to that put by Lord Stowell 
in Hawke v. Corri {d) : the court does not appear to have expressed 
any opinion on the point, and declined to decide it on the ground that 
it was not positively stated whether the person who had performed 
the ceremony was, or was not, in holy orders. If they had supposed 
a contract to constitute a marriage, the inquiry into this fact would 
not have been material. 

In Lantour v. Teasdale («), the language of Lord Holt in the cases 
before referred was adopted ; but in that case the marriage was so- 
lemnized by a priest, and the point, therefore, did not arise ; and it 
did not come in question what species of marriage would confer the 
civil rights of dower, &c 

The elaborate and learned judgment of Lord Stowell, in the case 
of Dalrymple v. Dalrymple, requires more attentive consideration. 
His Lordship in that case took a view of the state of the general 
canon law of Europe previous to the Council of Trent. At that time 
he observed, that the canon law, *' although, in conformity to the 
prevailing theological opinion, it reverenced marriage as a sacrament, 
still so far respected its natural and civil origin, as to consider that 
where the natarid and civil contract was performed, it had the full 
essence of matrimony without the intervention of a priest: it had, 
even in that state, the character of a sacrament \ for it is a misappre- 
hension to suppose that this intervention was required as matter of 



(a) See [p. 356. of vol. 11. of this trea- (c) Burr. Sett. Cases, 232. 
tise,] and2 Vea. Jnn. 195. (d) Ante, [p. 377.] 

. ib) Cited ante, p. [380.] (e) Taunt. 830 ; 2 Marsli. 243. 



APPENDIX. 



393 



necessity, even for that purpose, before the Council of Trent. It 
appears from the histories of the Council, as well as from many other 
authorities, that this was the state of the earlier law, till that Council 
passed its decree for the reformation of marriage. The consent of 
two parties expressed in words of present mutual acceptance consti- 
tuted an actual and legal marriage, technically known by the name of 
sponsalia per verba de prcBsenti; improperly enough, because sponsalia^ 
in the original and classical meaning of the word, are preliminary 
ceremonials of marriage; and, therefore, Brower justly observes, jm* 
pantificium nimis laxo ngnificatu^ imo etymologid invitdy ipsas nuptias 
sponsalia appellavit,^ (a) 

If this passage were understood as implying that a matrimonial 
union, formed by consent alone, was at the time referred to univer- 
sally held to be equally complete with a marriage attended with ec- 
clesiastical solemnities, it would certainly be giving it a meaning too 
wide, and probably beyond what the learned judge intended to express ; 
for in a succeeding passage it is admitted, that different rules relative 
to their effect in point of legal consequences were applied to marriages 
of this description and to regular marriages, that every thing wan 
presumed to be complete and consummated in substance, but not 
in ceremony ; and the ceremony was enjoined to be undergone as 
matter of order, (b) The term legal marriages, which is here applied 
to matrimonial contracts, seems not to be used in an unqualified sense 
or as implying them to be in all respects complete. 

It is certain, indeed, from Selden's dissertation on the point, that 
long before the Council of Trent, an opinion had been very generaUy, 
if not universally, adopted in the church, that though the contract 
of the parties formed the substance and vinculum of the marriage, the 
sacerdotal benediction was essential to render it complete, (c) Whether 



(a) 2 Hagg. 64, 65. 

(6) 2 Hagg. 65. 

(c) See Sclden, Ux. £b. lib. ii. chap. 
28 : see also Ayliffe^s ParegOn, p. 364, 
and the Constitutions of Leo, and Gotho- 
fred^s Annotations : Corp. Jur. Civ. ed» 
1720, vol. ii. p. 620. The latter says, 
'* Non est matrimoninm cui sacrorum 
benedictio defuit." The doctrine is as- 
cribed by Selden to an imitation of the 
Pagan and Jewish customs. It was 
commonly said to have been introduced 
into the church as matter of positive 



enactment, by a decretal epistle of Pope 
Evaristus, in the second century, which 
was referred to as having established 
^Mncestum haberi connubium cui sa* 
cerdos non adfuisset consecrassetque 
illud." Ux. £b. ub. supra. And though 
the authenticity of this epistle is ques- 
tioned by Selden, its doctrine was 
adopted by several writers of authority 
whom he cites, and appears to have met 
with general reception; and whatever 
its origin may have been, it was quite 
natural that ajiotioa which added dig- 



394 



APPENDIX. 



the contract alone had the character of a sacrament, was a point upon 
which divines differed, (a) The decree of the Council of Trent con- 
tfuned a declaration of the previous validity of clandestine marriages, (b) 
This, however, applied more immediately to marriages had without 
the consent of parents, than to unions formed without spiritual inter- 
vention, which were technically designated by the term sponsalia: 
and if this declaration did comprise unsolemnized contracts, still, from 
the manner in which the decree was prepared and passed, its incon- 
sistencies, the opposition it encountered, and the partial reception 
which it met with, it cannot be looked upon as conclusive evidence of 
the previous opinions of the church (c) ; and giving it the largest 
construction which its language admits of, it by no means shows that 
the former doctrine placed the contract or sponsaUa on the same 
footing as marriage celebrated by a priest. 

The distinction which exists is exemplified by the term sponsaUa 
de prcBsentiy which the canonists had introduced and applied to present 
contracts of marriage, as distinguished from marriages solemnized. 
The term was not known to the civil law : as by that law a present 
contract constituted a marriage, there could be no sponsaUa, except 
those which referred to a future period ; and the term sponsaUa de 
prtBsenti was therefore often objected to as a refinement invented by 
the canonists, (a) Thus, Swinburne says that the contract deprtesenti 
was in nature and substance rather matrimony than spousals; and 
that the canonists, though they invented the distinction, yet they 
oftentimes made no difference, or very little, between the nature and 
effects of spousals de prcBsentiy and of matrimony solemnized and con- 
summated, (d) But though the practical effect of the distinction was 
in many respects slight, it^} existence and acceptance amongst the 
canonists is proved by the technical description of unsolemnized 
contracts, under the term sponsaUa {f)y denoting a betrothment, or 
an inchoate and imperfect union; and this distinction became im- 



nitj to the clergj, and gave to the 
church an important branch of jurisdic- 
tion, should have been readily embraced. 

(a) See Selden, u^. sup. : Sanchez de 
Matrimonio, lib. 2. disp. 6. 

(h) See 3 Phill. 64. 

(r) See Father PauVs History of the 
Council of Trent, book viii. 

(d) 2 Ilagg. 65 ; lleinecclus, Elem. 
Jur. Nat. chap. ii. sec. 30. 



(e) P. 3. 9. 

(/) ** Quemadmodum jtire Csesareo, 
uti etiam plerumquepontificio, sponsalia 
sunt ipsius matrimonii contractus seu sti- 
pulatio, et in consuetudinem illam vitas 
repromissio, nuptive vero qiue a sponsa- 
libus distinguuntur, solennes illss ritus 
insequentes quiSiis matrimonium peril- 
citur, celebraturque." Selden, Ux. £b« 
lib. H. ch. 1. 



APPBNDIX. 395 

portant where the temporal law, as in England, attributed the civil 
efTects of matrimony only to those marriages which were legally 
complete. 

The important change introduced by the Council of Trent was in 
the prospective part of its decree, which declared that marriages^ 
unless contracted in the presence of a priest and two witnesses, should 
be entirely void, thus destroying the effect of the contract ; the former 
rule, that the consent of the parties was the substance of the marriage 
and completed the vinculum^ was annulled : and hence, in the countries 
where the decree of that Council was received, the intervention of the 
priest become necessary, not only to the solemnization of marriage, but 
to the binding effect of matrimonial contracts or spansalia. The apparent 
difference between Lord StoweU's judgment and other authorities, seems 
to arise from his Lordship giving the title of marriage to what was 
technically known under the name of sponsaliuy and from his referring 
more to that which constituted the vinculum^ than to that which was 
essential to make the marriage in all respects complete. In attributing 
to the Council of Trent the rule requiring the intervention of a 
priest (a), his Lordship can only be understood to refer to the decree 
having made that intervention necessary to form the vinculumy the 
opinion that it was necessary to form a perfect marriage having pre- 
vailed long before. 

The decree of the Council of Trent not having been received in 
England, the binding effect of a contract entered into by the parties 
alone was still preserved here ; and there is no reason to suppose that 
the doctrines promulgated by that Council could by any indirect in- 
fluence have led our courts to establish the rule requiring a solemni- 
zation of marriage by a priest* It appears, indeed, from several of 
the authorities referred to above, that, previous to the date of that 
Council, that rule was understood to exist in England ; its existence 
can only be ascribed to doctrines of the church originating at an earlier 
period. 

Lord Stowell, in his judgment, proceeds to remark, that, *^ at the 
Keformation this country disclaimed, amongst other opinions of the 
Somish church, the doctrine of a sacrament in marriage, though still 
retaining the idea of its being of divine institution in its general 
origin ; and on that account, as well as of the religious forms that 
were prescribed for its regular celebration, an holy estate, holy ma- 

(a) 2 Hagg. 82. 



396 APPENDIX. 

triraony ; but it likewise retained those rules of the canon law which 
had their foundation, not in the sacrament, or in any religious view 
of the subject, but in the natural and civil contract of marriage. The 
ecclesiastical courts, therefore, which had the cognizance of matri- 
monial causes, enforced these rules ; and amongst others, that rule 
which held an irregular marriage, constituted per verba de prassentii 
valid to the full extent of avoiding a subsequent regular marriage 
contracted with another person." (a) His Lordship afterwards adds, 
that "the common law certainly had scruples in applying the civil 
rights of dower and community of goods, and legitimacy, in the cases 
of these looser species of marriage." (fi) These passages, though not 
alluding to cases such as those of Haydon v, Gould, and not explaining 
in detail the extent to which the religious view of the nature of mar- 
riage continued to influence the proceedings of our ecclesiastical courts, 
are not in substance inconsistent with the observations here offered. 
It is affirmed only that the contract had the effect of vitiating a sub- 
sequent marriage with another, and the proposition, that it did not 
confer the civil rights which flow from a legal marriage, is not disputed. 

It will be observed, that in the passage last cited from Lord 
Stowell's judgment, as well as in the passages referred to in Swin- 
burne (c), the rule excluding unsolemnized contracts from the civil 
privileges of legal matrimony is attributed to the doctrines of the 
common law. It is clear, however, that the common law, if by that 
be meant the law administered by the temporal courts, interfered no 
further than to require a lawful marriage as the foundation of civil 
rights, leaving the question what was a lawful marriage to be 
determined according to the law administered by the ecclesiastical 
courts: if a woman united to a man by contract only, without 
solemnization in facie ecclesicBy did not recover dower, it was only 
because the ecclesiastical courts refused to acknowledge such an 
union as legitimum matrimonium. It was the same with respect to 
legitimacy, which depended in general on the bishop's certificate. 
There was certainly no rule by which the civil tribunals required 
any marriage ceremonies, except those which the ecclesiastical courts 
considered essential to constitute lawful matrimony. 

It will have been noticed that the judgment referred to, in 
speaking of the sentences enforcing solemnization in pursuance of 
contracts, mentions that this solemnization was enjoined as matter of 

(a) 2 Ilagg. 67. (&) Ibid. 68. (c) Ante, p. [379.] 



APPENDIX. 



397 



drder. It is not, however, to be inferred that the solemnization was 
decreed merely for the sake of public order and decorum : for it is 
known that these sentences were not the result of any species of 
public prosecution, but that they were made in suits instituted by 
one of the eontracting parties, desiring the benefit of the contract, 
and for that purpose calling on the other party to proceed to 
solemni^sation. The common practice of instituting suits for this 
object would be quite inexplicable, unless the authorities be correct 
in stating that the solemnization was essential to oonfer the privileges 
of marriage. 

The various authorities here adduced establish the proposition, that 
according to the law administered in England before the Marriage 
Act, a matrimonial contract de prcesenti was essentially distinct from 
a marriage solemnized by a person in holy orders; that it did not 
confer on the woman the right to dower ; on the man the right to 
the woman's property ; or on the issue the rights of legitimacy ; and 
that it did not render a subsequent marriage with a third person ipso 
facto void at law, though it formed a ground for a sentence annulling 
it. They seem also to show, that, according to the ecclesiastical law, 
the contract did not give any right, except to call for a performance 
of it by actual solemnization, not justifying cohabitation, and not 
conferring conjugal rights ; and that at the common law it had no 
effect, though in cases where the parties cohabited, and were reputed 
to be man and wife, this might be sufficient evidence for the pur- 
poses of some actions in which strict proof was not required, (a) 



(a) According to some of the opinions 
given in evidence in Dalrjmple v. Dai- 
ry mple, 2 Haj|;g. Appendix, p. 17, etseq,^ 
it seems, that in Scotland solemnization 
of marriage in fade eccleaice was indis- 
pensable previooslj to the Eeformationf 
that some relaxation of this rule had 
been introduced by the statute 1503, 
ch. 77, by which marriage by habit and 
repute was made sufficient to intitle the 
widow to her terce ; and that the law 
was gradually changed by the new doc- 
trines introduced at the Reformation, 
For some time it continued to be the 
practice to compel a party who had 
entered into a contract of marriage to 
complete it by solemnization ; this had 
been abandoned, and other modes of 



constituting marriage were admitted; 
but upon the question what mode was 
sufficient, the greatest variety of opinion 
existed, together with some fluctuation 
of decision, until the law was settled by 
the cases of Dalrymple v. Dalrymple, 
and M^Adam v. Walker. Some thought 
that a mutual declaration of present 
consent in private, without consumma- 
tion, constituted a marriage ; but it was 
admitted that the case of M'Adam v. 
Walker was the first in which such a 
marriage was established. Others were 
of opinion, that if there were no cohabit- 
ation or carnal intercourse, contract or 
consent alone would not be sufficient, 
and that either party might resile, unless 
there had been some species of celebra- 



398 



APPENDIX. 



[It has lately been decided by the House of Lords in the case of 
the Queen v. Milli8(a)9 and by the Couii; of Exchequer in that of 
Catherwood v, Cs8\on(b)y that a contract of marriage per verba de 
prcBsenti, although indissoluble between the parties themselyes, 
affording to either of the contracting parties by application to the 
spiritual court the power of compelling the solemnization of an 
actual marriage, never constituted a full and complete marriage in 
itself, unless solemnized by a person in holy orders.] 

The marriages of Jews and Quakers are excepted out of the 
operation of the first Marriage Act, as well as of that now in force. 



tion, though without defining what form 
was to be observed, and allowing that 
the assistance of a clergyman might be 
dispensed with. It was said (with sin- 
gular yagueness) that, rebus vUegriSy 
marriage could ^ only be constituted by 
a consent adhibited in the presence of a 
clergyman, or in some other solemn mode 
equivalent to actual celebration^ 2 Hagg. 
Appendix, 132 : the practice in Gretna 
Green marriages, of going through the 
form of the marriage service, was pro- 
bably intended to conform to this opi- 
nion. The distinction between con- 
tracts de prasenti and contracts de 
/uturo was not admitted by all ; but it 
was generally agreed, that a contract or 
promise, followed by a copuhy amounted 
to marriage ; and some, it seems, thought 
that the law of Scotland would look with 
equal indulgence on a copula antecedent 
to ihe contract 2 Hagg. 97, Appendix, 
140. On the other hand, it was thought 
by some that a contract, or promise 
cum copula^ would be defeated by a sub- 
sequent regular marriage between one 
of the parties and another person. The 
difference between the laws of England 
and Scotland, in this respect, may be 
ascribed partly to the different courses 
which ihe Reformation took in the two 
countries, and perhaps partly to the 
jurisprudence of the latter having been 
more influenced by the civil law. In 
Scotland, the abolition of episcopacy in- 
troduced a different view of the nature 
of the sacerdotal office ; the^doctrine of 
the distinct and indelible character of 



the priesthood, and of the authority en- 
trusted to them by a divine commission, 
derived through successive consecrations 
and ordinations from the apostolic ag^ 
was not retained: and this, together 
with the change of the ecclesiastical 
jurisdiction, naturally led to the idea that 
the ministration of a clergyman could 
give no peculiar efficacy to a ceremony ; 
and the opinion that marriage was merely 
a civil contract ultimately prevailed. In 
England, the church departed less widely 
from its ancient doctrines; episcopal 
jurisdiction and ordination were retained, 
and the doctrine of the spiritual nature 
of marriage was never lost sight of. It 
is probably from the same cause, that 
another important distinction between 
the laws of the two countries has arisen : 
the Scotch law allowing divorces d vinculo^ 
while that of England adheres to the 
doctrine of the indissolubility of mar- 
riage, a doctrine founded on the religious 
view of the subject. [See, as to mar- 
riages in Scotland, the cases of Stewart 
V. Menzies, 2 Rob. App. C. Scotland, 
547 : Reid v. Laing, 1 Shaw, Scotch 
Appeals, 440: Robertson o. Crawford, 
9 Beav. 102: Macneil v. Macgregor, 1 
Dow & G. 208 : Hoggan v. Cragie, Rob. 
& Maclean, 943 : Reg. v. Dent, 1 Car. 
& K. 97 : and the 4 & 5 W. 4. c. 28.] 

[(a) 10Cl.&F.634;7Jur.911.982; 
8 Jur. 717.] 

1(b) 13 Mees. & W. 261 ; 13 Law J, 
•^N. S. Ex. 1076; 8 Jur. 1076: see, 
- however, a discussion of the cases in the 
Law Review, vol. 2. p. 136.] 



APPENDIX. 



399 



The exception is confined to cases where both the parties are Jews or 
Quakers, (a) 

With respect to the Jews, it appears that their marriages have at 
all times been celebrated according to the rites of their own religion, 
^nd the legal validity of such marriages has been recognized in 
various cases as well before (i) as since (c) the Marriage Act. And 
questions arising upon them are determined bj the Jewish law, 
which is ascertained in the same manner as a foreign law, by the 
testimony of its professors, (d) 

Thb exception to the general law has probably arisen from the 
peculiarities attending the state of the Jewish nation in England ; 
having always been looked upon as a distinct people, and having for 
a long time been treated rather as aliens than as native subjects. 
During the earlier periods of their residence in England, they were so 
far severed from the rest of the inhabitants as to be subjected to a dis- 
tinct judicature, regulated to a certain extent by their own laws.(tf) 

The cases of' Lindo v. Belisario, and Goldsmid v. Bromer, show, 
that whatever may have been the origin of the exemption of Jewish 
marriages from the general law, it has not arisen from an opinion, 
that a present contract alone constituted a marriage, and that the 
form of solemnization was therefore immateriaL In each of those 
cases, it was clear that what had passed amounted to a contract per 
verba de prcBserUi, and that it was looked on by the parties as an 
actual marriage: in the latter case consummation had followed. 
The substance of the matrimonial contract was complete; but in 



(a) Jones v. Robinson, 2 Phill. 285. 
[See Tol. I. p. 4. of this treatise.] 

(b) Andreas o. Andreas, 1 Hagg. 
Appendix, 9, note : La Costa v. Villa 
Real, 1 Hagg. 242, note i see Franks v, 
Martin, 5 Bro. P. C. 151. 155. 

(c) D*Aguilar v, D*Agailar, 1 Hagg. 
134, note: Yigevena v. Alvarez, ibid. 
Appendix, 7, note: Lindo v, Belisario, 
1 Hagg. 216 : Goldsmid v. Bromer, ibid. 
824 : Horn v. Noel, 1 Campb. 61 : 
[Moss V. Smith, 1 Man. & G. 229: 
D'Aguilar v.D*Agttilar,l Hagg. Ecd.R. 
773.] 

(d) Lindo 9. Belisario : Goldsmid v. 
Bromer, ti&. supra, 

(e) Mad. Hist Exch. chap. 7. sec. 3. 
Sec 2 Hagg. 217, note : 2 Swan. 505, 



note, and Prjnne's Short Demurrer to 
the Jews* long discontinued barred re- 
mitter into England. It seems that the 
wife's right to dower, and the descent of 
lands, were governed bj the Jewish law. 
Prjnne gives a writ to the justices of 
the Jews, in 23 Hen. 3., directing them 
to put the two sons of one Samuel, a de- 
ceased Jew, into possession of his lands 
and chattels, on payment of a fine, '* salvo 
uxori ejusdem Samuelis rationabili dote 
sufi, secundum legem et consuetudinem 
Judseorum,** p. 27. By letters patent 
in 54 Hen. 3., the King confirmed to a 
Jew a house in London, devised to him 
by his ' father by a will, ^ secundum 
consuetudinem Judaismi nostri,*' p. 65. 



400 APPENDIX. 

each of these cases^ the sentence of nullity was pronounced, on the 
ground of the ceremony being imperfect according to the Jewish law. 
These marriages, therefore, are not supported as contracts : a com« 
pliance with the Jewish ceremonials being essential to their validity. 

It is less easy to ascertain what principles of law are now to be 
applied to the marriages of Quakers. The question must, in a great 
measure, depend on the state of the law previous to the statute 26 
Geo. 2., with reference to marriages of protestant dissenters, celebrated 
in their own congregations : and it does not appear that there has 
been any solemn decision on this point, excepting in the case of 
Haydon t;. Gould. 

In a oase in Levinz (a), which occurred a few years after the 
Toleration Act, it appeared, that a marriage between two protestant 
dissenters (who had taken the oaths, and made the declaration ac* 
cording to that act), had been celebrated in their own congregation : 
they had afterwards been libelled against in the ecclesiastical court, 
and pleaded this matter by way of defence ; but the court refused to 
admit it A motion was then made for a prohibition, and Levinz says 
that it was agreed that a prohibition should go, and that the plaintiff 
should declare on the prohibition, so that upon a demurrer the law might 
be tried. It does not appear whether this case received an ultimate 
decision, (i) 

It was followed by the case of Haydon v. Gould, which tends 
strongly to show, that the question raised in Hutchinson v. Brooke- 
banke was not settled in favour of the validity of dissenters' marriages. 
It does not, indeed, appear whether the parties in Haydon v, Gould 
had taken the oaths and subscribed the declaration required by the 
Toleration Acts : but the case seems always to have been looked upon 
as a decision applicable to such marriages generally. Thus it is said, 
in one statement of that case, that "the act of 7 & 8 Will. 3. 
chap. 35, seems to put this matter out of all doubt, which lays a 
penalty on clergymen in orders, if they celebrate marriage in a clan- 
destine manner; for if the same privileges attended marriages 
solemnized by the dissenters, as those celebrated according to the 
church of England, how easily would that act be evaded, or rather 
rendered of no effect. There would then be no occasion for licence 
or banns, for making oath, or giving security that there were no legal 



(a) Hutchinson v. Brookebanke, 3 (b) See 1 Ilagg. Appendix, 7. 
Lev. 376. 



APPENDIX. 401 

impediments; but every one might do what was right in his own 
eyes^ who should get himself admitted of a dissenting congregation." (a) 

In the case of Green v. Green (&)9 a Quaker marriage seems to 
have been thought not suflEicient to intitle to the restitution of conjugal 
rights. In another Gase{e\ in the year 1730, the libel pleaded a 
marriage had in the manner usually observed amongst the Quakers, 
by public declaration at their monthly noeetings, and that notwith- 
standing the defendant had refused to solemnize and consummate. 
The defendant admitted the contract, alleging it to be conditionaL 
There were two sentences against him in the coodistory of Durham, 
and afterwards at York» It seems that there was an appeal to the 
delegates, the result of which doea not appear ; but as far as the case 
went, this species of marriage was treated as standing only on the 
fboting of a contract. 

The argument which has been drawn from the Toleration Act cer- 
tainly receives some countenance from the judgment of Sir J. NichoU 
in the case of Kemp v. Wickes, where the question was, whether 
baptism by a dissenting minister was sufficient to intitle the party to the 
rites of burial according to the forms of the church-. It was decided, 
that baptism by a layman would have beeix sufficient foi: this purpose; 
and it was not, therefore^ necessary to consider whether the perform- 
ance of the ceremony by a dissenting minister would be looked upon 
in law as different from a performance of it by a layman. But Sir 
J. NicboU appeared to think, that this question might be materially 
affected by the Toleration Act, and thought that dissenting ministersi 
being now legalised, it could not be said that rites and ceremonies 
performed by them were not such as the la^w coiUd recogniziB in any 
court of justice, (d) 

On the other ha,ad, it is to be observed, that it was plainly not the 
meaning of the Toleration Act to confer on. dissenters any thing 
beyond an immunity from the penalties to which they were before 
subjected : as Lord Hardwicke observes, it gives no new right, but 
only an exemption from the penal }aws^ {e) It would therefore be 
difficult to maintain that this act could give to the religious 
ceremonies of dissenters any additional efficacy in conferring the civil 

(a) 2 Bam*8 Ecclesiastical Law, 472 : (<i) Judgment of Sir J. Nicholl, upon 

see also Browne*s Civil Law, vol. 1. the admiss^)n of articles in Kemp r. 

p. 75n. Wickes, London, 1810; Butterworth, 

(p) 1 Hagg. Appendix, 9, note, see p. 36. 

(c) Dodgson V, HasweU, ibid. (je) 2 Swan. 490, note ; see 3 Mer. 405. 

VOL. II. D D 



/. 



^ I 



402 APPENDIX. 

rights of marriage, though it might perhaps form a ground for con- 
tendings as in Hutchinson v. Brookebanke, that such marriages and 
cohabitation after them were no longer punishable. The spiritual 
court, however, in that case refused, as it seems, to admit the plea, 
even for the purpose of defence, and the Irish statute 11 Geo. 2. 
chap. 10, sec. 3 («), proves that the Toleration Act in that country 
(which corresponds with the English Act) was not considered to 
justify the cohabitation of dissenters married according to their own 
forms. The cases of Haydon v. Gould, Green ». Green, and Haswell 
V. Dodgson, are much opposed to the notion, that such marriages had 
acquired for other purposes any force beyond that of contracts. In 
Collins V. Jessot, and Wigmore's case, they ture treated as contracts 
only. The statute 7 & 8 Will. 3. (passed shortly aftar the case of 
Hutchinson t;. Brookebanke) indicates that at that time their validity 
was not acknowledged : the subsequent statute 10 Anne, c. 19, in 
omitting to notice any marriages except those solemnized by priests, 
raises a similar inference. And the opinions extracted above, from 
Wood and Buller^ only speak of such marriages as being good for the 
purpose of actions where their legality did not €ome in question. 

The Irish statute 21 & 22 Geo. 3. chap. 25 (&), was in form 
declaratory, but it is clear that it in fact introduced a new law. This 
appears from the previous statute 11 Geo. 2. A learned writer 
before referred to, who states the general matrimonial law of Ireland 
to require the intervention of a priest, considers, indeed, that the 
marriages of dissenters had, before the statute 21 & 22 Geo 3., 
acquired validity for some purposes. He states (c), that such mar- 
riages, if solemnized according to their own rites, and if both parties 
were of the s^ime persuasion, were good to all civil effects ; for instance, 
to support an ejectment where legitimacy came in question, or an 
action for criminal conversation ; but that, if they came to intitle 
themselves to any rights in the ecclesiastical courts, as to administra- 
tion, they must prove a marriage according to the ecclesiastical law : 
for the latter point he refers to Haydon v. Gould. It does not, how- 
ever, appear, whether this partial exception to the general law was 
supposed to have originated with the Toleration Act, or upon what 
foundation it stood. It may probably be referred to those distinctions 
in the rules of evidence which have been alluded to above. Upon any 
other principle, it would be difficult to account for the distinction sup- 

(a) Ante, p. [382.] (c) Browne's Civil Law, vol. 1. p. 75. 

{b) AtUty p. [382.] note. 



APPENDIX. 403 

posed between the speoies of marriage sufficient for the purposes of an 
ejectment, and that required bj the law of the ecclesiastical courts 
for the purposes of their proceedings. The question of l^itimacy in 
a real action would necessarily depend directly on the rules of the spi- 
ritual law ; and it would have been singularly anomalous, if there had 
been one law of legitimacy in real actions, and another in ejectment. 

These remarks refer to the marriages of dissenters in general 
before the Marriage Act ; but some of the views which might then 
have been adopted with reference to other sects could not be applied 
to the case of the Quakers. Their mode of celebrating, or rather of 
declaring a marriage, partaking scarcely, if at all, of the nature of a 
religious ceremony, would have rendered it more difficult to distinguish 
their marriages from mere contracts. And if the opinion hinted at 
in Kemp v. Wickes (a), that the Toleration Act gave a new character 
to dissenting ministers, could be carried to the extent of contending 
that it placed religious ceremonies performed by them on the same 
footing, in point of legal effect, with those performed by persons in 
orders, this argument could not be urged in support of the marriages of 
Quakers, as their practice does not admit any distinct minister. For 
the same reason, the terms of the Irish statutes 1 1 Geo. 2. chap. 10, 
and 21 & 22 Geo. 3. chap. 25, do not in strictness include Quakers : 
they speak only of matrimonial contracts entered into before dis- 
senting ministers or teachers, and of marriages solemnized by them. 

But another view of this question, as it regards the present state 
of the law, arises from the clause introduced into the first Marriage 
Act, and repealed in the subsequent acts, by which the marriages of 
Quakers are excepted. This clause may, perhaps, be looked upon as 
a legislative recognition of the validity of these marriages, indirectly 
legalizing them ; and there are some expressions to be found favour- 
able to this view, (b) If, however, these marriages were previously 
invalid, or valid only to a certain extent, it is not very obvious that 
additional efficacy could be given to them by a statute declaring that 
nothing therein contained shall extend to them. If this had been the 
design of the legislature, different expressions would have been used ; 
the exception was, no doubt, made from its being known that the 
scrupulous adherence of the Quakers to their own tenets, precluded 
the expectation of their conforming to the regulations of the Act ; 
and the intention most probably was to leave their marriages in their 

(a) Ante, p. [401 .] (b) See 1 Hagg. App. 8 ; 2 Phil. 285 ; 2 Bum's Eccl. L. 48G. 

DD 2 



404 APPENDIX. 

previous condition to be judged of by the previous law, and with that 
qualified and doubtful validity which they were then considered to 
possess. Thus it has been seen that, according to some opinions, 
these marriages were at that time valid for some purposes only : and 
if those opinions were correct, it would be very difiicult to maintain 
that the Marriage Act has rendered them valid for any other purpose. 

The weight of the authorities seems, however, to show, that although 
persons claiming under these marriages might succeed by means of 
indirect and presumptive evidence, yet that the law did not recognize 
their validity, and that their only legal effect was derived from their 
being contracts de prcBsenti, which might be enforced by the spiritual 
courts, till that jurisdiction was taken away by the Marriage Act. If 
this conclusion be correct, it will follow that the Act, unless it has legal- 
ized the marriages of Quakers, has deprived them of that effect which 
they previously had. It is plain, however, that it was not intended 
to render them less effectual than before : and this may be uiged 
in favour of the opinion, that the Act has operated to confirm them. 

Since the Act, .the validity of the marriages of Quakers does not 
appear to have come in question, at least not in any reported case, [(a)] 
This has probably arisen from their prudent and peaceful habits, and 
perhaps partly from the circumstance of its not being either the 
interest of any members of their own families, or the disposition of 
the crown, to raise the objection^ If the law on this subject should 
not be fixed by a legislative measure, and if the question should call 
for a judicial decision, the Courts would no doubt be strongly inclined^ 
upon obvious principles of reason and justice, as well as from the 
number and respectability of the persons interested, to support these 
marriages, whatever difficulty there may be in finding grounds upon 
which their validity can be reconciled with the former law : perhaps 
the least objectionable mode ,of sustaining them would be to consider 
the saving clause in the Marriage Act as^a recognition precluding the 
inquiry into their former condition. 

Supposing the decision on the general question of the legality of the 
marriages of Quakers to be in their favour, the ground on which that 
decision may proceed will influence sqme other questions which may 
arise. If it should proceed upon the notion that they had before the 
Act acquired validity for some purposes, it will, upon that supposition, 
be at least doubtful whether they can now be held to confer all the 

[(d) A case has lately occurred at Nisi Prius, see p. 386. ante.'] 



APPENDIX. 



405 



rights of marriage. If the decision should proceed upon the argument 
deduced from the Toleration Act, it will be a question whether the 
parties must not be shown to have brought themselves within that 
Act, by subscribing the declaration which it requires, (a) It b also 
at present uncertain what may be decided as to the particular mode 
in which a marriage may be constituted between Quakers,, whether 
the mere contract or engagement of the parties, without public cere 
monial or parental consent^ be sufficient, or whether an observance of 
any forms be essential ; nor does there seem to be any certain rule 
for determining what is the proper form, or what degree of departure 
from it may be fatal : varieties of opinion and practice may exist at 
different times, and in different congregations: and there is not, as 
amongst the Jews, any ancient and settled law, which can be referred 
to for the decision of such questions. (6) 



By the statute 5 Gea 4. c. 75, marriages which had been solem- 
nized by license obtained without the proper consent, and which 



(a) The statute 52 Greo. 3. c. \55, 
dispenses with the oath and dechiration 
as to Dissenters in general, and extends 
the benefit of the Toleration Act to 
persons preaching at or resorting to 
meeting-houses duly registered. But 
this statute does not extend to Quakers. 

(b) The expediency of settling the 
doubts relative to the marriages of 
Quakers, by a declaratory law> is under- 
stood to have been intimated by a high 
authority in the House of Lords, during 
the last session of Parliament [1826]. 
There are some other parts of the law of 
marriage in this kingdom, to which the 
attention of the legislature might also be 
beneficially directed. With respect to 
Jewish marriages, it is singular that a 
law, by which a marriage may be an- 
nulled on proof that a person has eaten 
meat's forbidden to that nation, stirred a 
fire, or snuifed candles on a Saturday, 
1 Hagg. 324, should have been so long 
allowed to exist; and few can doubt 
that our courts ought to be relieved from 
the necessity of administering such a law. 
With respect to Scotland, whatever dif- 
ference of opinion there may be as to 

D 



the p^icy of controlling the choice of 
minors, it must be admitted by all,, that) 
the variety and uncertainty of the evi- 
dence by which marriage may in that 
country be established, is calculated to 
produce great insecurity and confusion. 
And the difference between the law of 
divorce, as administered in Scotland and 
in England, has introduced much un- 
certainty, and some strange anomalies. 
See Lolley's case, Russ. and Ryan*s 
Crown Cases, p. 237, and Tovey v. 
Lindsey, 1 Dow, 117. [See also Con- 
way, otherwise Bea^ley r. Beazley, 3 
Hagg. Eccl. R. 639 : Warrender r. War- 
render, 9 Bligh, N. R. 89 ; 2 CI. & F. 
488. As to the effect of a foreign 
divorce upon a marriage solemnized in 
England, see McCarthy r. Decaix, 2 
Russ. & M. 615.] In Ireland, the law 
by which the validity of a marriage de-< 
pends, in many cases, on the religion of 
the parties, besides opening a door to the 
most infamous frauds, occasions frequent-^ 
ly similar uncertainty, -from the ques- 
tion turning on a point, as to which there 
must often be an absence of clear proof. 
See 2 Addams, 471, and Irish T. R. 259. 
D 3 



406 APPENDIX. 

were therefore void under the statute 26 Geo. 2. c. 33, were ren- 
dered valid in cases where the parties had continued to cohabit (a) 
until the death of one of them, or until the passing of the Act, or 
where they had only discontinued their cohabitation for the purpose 
of or during the pendency of any proceedings touching the validity 
of such marriage. The Act excepted cases where the invalidity of 
the marriage had been declared by any Court of competent juris- 
diction, or established upon the trial of any issue, or acted upon by 
any judgments, decrees, or orders of Court, or where either of the 
parties had, during the life of the other, lawfully intermarried with 
another person [(8)] ; and it provided that where any property, real or 
personal, had been possessed, or any title of honour enjoyed, on the 
ground of the invalidity of any such marriage, the right and interest 
in such property, or title of honour, should not be affected. These 
retrospective provisions did not include marriages by banns, and, 
therefore, marriages which were invalid under the former law, from 
the banns not having been duly published, are still void, (c) 

The statute 3 Geo. 4. c 75, also contained provisions with respect 
to future marriages. These [with the exception of the retrospective 
clause (c?)], together with the old Marriage Act, 26 Geo. 2. c. 33, 
have been repealed by the late Act 4 Geo. 4. c 76, which [with 
the 6 & 7 W. 4. c. 85, explained and amended by 1 Vic. c 22.] 
comprises the enactments that now regulate marriages in this coun- 

try. [(e)] 

The first section of this statute repeals the former Acts; the 

second prescribes the mode of publishing banns, and of performing 

the ceremony, nearly in the same terms as the old Act. The third, 

fourth, fifth, and sixth sections enable the bishop of the diocese^ with 

the consent of the patron and incumbent, to authorize the publication 

of banns, and the solemnization of marriage, in other chapels ; and 

the laws respecting registers are extended to such chapels. The 

next two sections are borrowed from the old Act : the seventh pro- 



(a) See Bridgwater v. Crutchley, 1 (c) Stanhope r. Baldwin, 1 Addams^ 

Addams, 473. [As to what has been 93. 

held to be cohabitation under this act, [(d) Rose p. Blakemore, Rjan & 

see King v. Jansom, 3 Add. 277 : Poole Mood. N. P. 383.] 
V, Poole, 2 Cromp. & Jer. 66 ; 2 Tyr. [(e) So much of the 4 G. 4. c. 76, as 

77 ; Younge Eq, Ex. 331.] relates to registration has been repealed 

[(b) This section is retrospective only: by the 6 & 7 W. 4. c 86. sec. 1 : and see 

Rex. p. Inhab. of St. John Delpike, 2 B. 7 W. 4. c. 1. sec. 1 .] 
& Ad. 226.] 



APPENDIX. 407 

Yides that seven days' notice of the names of the parties, their places 
of abode, and the time of their residence, shall be given to the 
minister before publication of banns; and the eighth exempts the 
minister from punishment for marrying minors without the consent 
of parents or guardians, unless with notice of their dissent, (a) By 
the ninth section^ if the marriage be not had within three months 
after the complete publication of banns, they must be republished in 
the same manner. By the tenth, licenses are only to be granted for 
marrying where one of the parties has resided for fifteen days. By 
the eleventh section, if a caveat be entered against the grant of a 
license^ it is not to be granted, until the matter has been examined 
by the judge out of whose office it is to issue. The twelfth section 
enacts, that parishes not having any church or chapel, and extra 
parodiial places, not having chapels in which banns may be pub* 
lished, shall be deemed to belong to any adjoining parish or chapelry. 

The thirteenth section provides, that when a church or chapel is 
disused, from being under repair, or from being taken downt to be 
rebuilt, the banns may be published in any place within the parish, 
or chapelry licensed by the bishop for the performance of divine 
service, or in the church or chapel of any adjoining parish or 
chapelry ; where no place is so licensed, the marriage may be solem- 
nized in such adjmning church or chapel ; and marriages heretofore 
solemnized in other places within parishes or chapelries, on account 
of the church or chapel being under repair or taken down to be 
rebuilt, are not on that account to be questioned, (b). 

The fourteenth section enacts^ that previous to the grant of « 
license, one of the parties shall swear to his or her belief that there is 
no lawful impediment, and to their residence ; and also, where either 
of the parties, not being a widow or widower, is under the age of 
twenty-one, that the consent of the persons whose consent is required 
by that Act has been obtained ; but it is provided, that if there shall 
be no such person or persons having authority to give such consent, 
then, upon oath made to that effect by the party requiring such 
license, it shall be lawful to grant such license notwithstanding thei 
want of any such consent. 



(a) Formerly the minister was liable (ft) See Stallwood r. Tredger, 2 Phill. 
to censure in the ecclesiastical courts 287, and stat. 5 Geo. 4. c. 72, cited post, 
for marrying without the consent of 
parents, though ignorant of their dissent. 
Bridgen*s case, 2 Burn. Eccl. Law, 432. 

D D 4 



408 APPENDIX. 

By the fifteenth section^ no bond or other security Is to be required 
on granting licenses. The sixteenth declares that the father^ if 
living, of any minor, not being a widower or widow, or if the father 
shall be dead, the guardian or guardians of the person of the party 
lawfully appointed, or one of them ; and if none, then the mother of 
such party, if unmarried ; and if there shall be no mother unmarried, 
then the guardian or guardians of the person appointed by the Court 
of Chancery, if any, or one of tliem, shall have authority to give 
consent to the marriage ; and such consent is thereby required, 
unless there shall be no person authorized to give such consent [(a)] 

The seventeenth section provides that where the father is nan 
compos mentis, or where the guardian or mother, whose consent is 
requisite, is non compos mentis, or beyond the seas, or unreasonably 
refuses to consent, the Court of Chancery may authorise the 
marriage. This clause corresponds with that in the old Act, but is 
extended to the case of the father being lunatic [(&)] 

The eighteenth section provides for the oath of office to be taken, 
and the security to be given by the surrogates deputed to grant 
licenses: by the nineteenth, licenses are to be in force for three 
months only ; and by the twentieth, the power of the Archbishop of 
Canterbury to grant special licenses is preserved. The twenty-first 
makes it felony, punishable by fourteen years* transportation, 
knowingly and wilfully to solemnize matrimony in any other place 
than a church or chapel, wherein banns may be lawfully published, 
or at any other time than between the hours of eight and twelve in 
the forenoon (unless by special license), or without due publication of 
banns or license ; and the same punishment is enacted for persons 
falsely pretending to be in holy orders, who shall solemnize matri- 
mony according to the rites of the church of England : prosecutions 
under this clause are to be commenced within three years. 

The twenty-second section declares, that if any person shall know- 
ingly and wilfully intermarry in any other place than a church, or 
such public chapel wherein banns may be lawfully published (unless by 
special license), or shall knowingly and w'dfuUy intermarry without 
due publication of banns or license from a person having authority to 

[(a) This section is directory only : case except where he b non compos 

Hex r. Inhab. of Birmingham, 8 B. & C. mentis^ ex parte J. C^ 3 M. & C. 471 ; 

29.] ex parte Colegrave, 7 Law J. N. S. Chan. 

[(Z») Tliis section does not dispense 236.] 
with the consent of the father in any 



APPENDIX. 409 

grant the same^ or shall knowingly and wilfully consent to or acquiesce 
in the solemnization of such marriage by any person not being in holy 
orders, the marriages of such persons shall be null and void to all 
intents and purposes whatsoever. 

By the twenty-third section it is enacted, that where any valid 
marriage of a minor by license shall be procured by the false oath of 
either party, as to the matters required to be svvorn to, such party 
wilfully and knowingly so swearing ; or if any valid marriage of a 
minor by banns shall be procured by a party thereto, knowing that 
the minor had a parent or guardian then living, and that such marriage 
was had without the consent of such parent or guardian, and knowing 
that banns had not been duly published, and having knowingly caused 
or procured the undue publication of banns, the Attorney or Solicitor- 
General may file an information in the Court of Chancery or Exche- 
quer at the relation of a parent or guardian of the minor, whose con- 
sent has not been given to such marriage, and who shall be responsible 
for the costs, to sue for a forfeiture of all estate, right, title, and in- 
terest in any property which hath accrued, or shall accrue, to the party 
so offending, by force of such marriage : and such Court shall have 
power in such suit to declare such forfeiture, and thereupon to order 
and direct that all such estate, right, title, and interest in any property 
as shall then have accrued, or shall thereafter accrue, to such offending 
party by force of such marriage, shall be secured under the direction 
of such Court for the benefit of the innocent party, or of the issue of 
the marriage, or of any of them, in such manner as the said Court 
shall think fit, for the purpose of preventing the offending party from 
deriving any interest in real or personal estate, or pecuniary benefits 
from such marriage ; and if both the parties so contracting marriage 
shall, in the judgment of the Court, be guilty of any such offence as 
aforesaid, it shall be lawful for the said Court to settle and secure 
such property, or any part thereof, immediately for the benefit, of the 
issue of the marriage, subject to provisions for the offending parties l)y 
way of maintenance, or otherwise, as the said Court, under the par- 
ticular circumstances of the case, shall think reasonable, regard being 
had to the benefit of the issue of the marriage during the lives of their 
parents, and of the issue of the parties respectively by any future 
marriage, or of the parties themselves, in case either of them shall 
survive the other. Before filing such information, affidavit must be 
ipade of the circumstances, and that the relator had not discovered 
the marringe more than three months before his application to the 



410 APPENDIX. 

Attorney or SolicItor-GeneraL By the twenty-fourth section, all 
agreements, settlements, or deeds upon such marriages are made void 
so far as they may be inconsistent with the directions given by such 
Courts; and by the twenty-fifth section, such informations must 
be filed within a year from the solemnization of the marriage, [(a)] 

By the twenty-sixth section, proof of the residence of the parties is 
not required after the marriage, and evidence to prove non-residence 
shall not be received in any suit touching the validity of the marriage. 
The twenty-seventh section repeats the clause in the old Act, pro- 
viding that no suit shall be had to compel celebration of marriage in 
facie ecclesitBy by reason of any contract, whether per verba de pnB^ 
sentiy or per verba de future. The twenty-eighth provides, that mar- 
riages shall be had in the presence of two witnesses, and the register 
attested by them and by the minister : and the twenty-ninth makes it 
felony to insert in the register-book any false entry relating to a mar- 
riage ; or to make, alter, foi^e, or counterfeit any such entry, or any 
license of marriage, or to utter them as true, or to destroy any regis- 
ter-book, or any part thereof, with intent to avoid any marriage, or to 
subject any person to the penalties of the Act. The thirtieth section 
excepts the marriages of the Boyal Family, and the thirty-first excepts 
the marriages of Quakers and Jews. By the last section the Act is 
only to extend to England. 

The consent required to the marriage of a minor by this Act is 
the same as under the old Marriage Act, excepting in cases where the 
minor is without a legal parent or guardian, and where there is there- 
fore no person having authority to consent. In such cases the Eccle- 
siastical Judge, or the surrogate, has power to grant the license of his 
own authority. But a guardian may, nevertheless, still be appointed 
by the Court of Chancery, for the purpose of consenting, and this has 
been done in some cases which have occurred since the Act. 

The guardian " lawfully appointed," is considered to mean only a 
guardian appointed by the father under the statute 12 Car. 2. c 24 (b): 
and consent to a marriage can therefore not be given by a guardian 
of any of the other kinds known to the law, excepting a guardian 
appointed by the Court of Chancery ; and although the latter would, 
in general, supersede the authority of the mother, yet, under the ex- 



1(a) See as to this section, vol. I. (J) See Homer r. Horner, 1 Hsgg. 
p. 6. of this treatise, and Att.-Gen. v, 355, 
Lucas, 12 Jur. 534.] 



APPENDIX. 



411 



press terms of the Act, bis power with respect to marriage does not 
arise so long as the mother is living and unmarried. 

The most important alteration In the law by the late statute^ is the 
repeal of the clause In the statute 26 Geo. 2. c. 33, declaring null and 
void marriages not solemnized in the mode there prescribed, and the 
substitution of the twenty-second section In Its place. By this clause 
the nullity Is confined to marriages where the parties are privy to the 
Irregularity ; and it appears, as well by the language of this as of the 
twenty-third section, that In order to render It void, both parties must 
be afiected with the fraud. If the marriage, though not conformable 
to the mode prescribed, be bondjide on the part of one or both of the 
parties, it will be good if solemnized so that It would have been valid 
before the old Marriage Act. 

The first cause of nullity is marrying, knowingly and wilfully, in a 
ace not a church or chapel qualified for the publicallon of banns, [(a)] 

The law, with respect to the place of solemnization, has been ex- 
tended by two subsequent Acts. The stat. S Geo. 4. c 32, enacts, 
that marriages which had been, or should be, solemnized In any place 
within the limits of any parish or chapelry, licensed by the bishop for 
the performance of divine service during the repair or rebuilding of 
the church or chapel, in which marriages had been usually solemnized ; 
or if no such place should be so licensed, then In a church or chapel 
of any adjoining parish or chapelry, in which banns are usually pro- 
claimed, whether by banns lawfully published In such church or 
chapel, or by license lawfully granted, should not on that account be 
questioned. 

■ 

The statute 6 Geo. 4. c 92, confirms all marriages which had 
been solemnized in any church or public chapel erected and consecrated 
since the statute 26 Geo. 2. c 33. {b) ; and enacts, that in future 



[(a) See Reg. o. Bowen, 2 Car. & K. 
227.] 

(ft) By the 8tatute8 44 Geo. 3. c. 77, 
and 48 Geo. 3. c. 127, marriages which 
had been solemnized in churches and 
chapels not within the stat. 26 Geo. 2. 
c. 33, were confirmed. [By the 11 G. 4. 

6 1 W. 4. c. 18. sec. 5. marriages are 
declared yalid which have been cele- 
brated in chapels, the consecration of 
which might be doubted. By the 6 & 

7 W. 4. c. 24, marriages are declared 
valid which had been celebrated in St. 



Ann*8 chapel, in the parish of Wands- 
worth. Chap. 92 contains a similar pro- 
vision as to marriages celebrated in the 
new church of St. Clement's, Oxford. 
By the 7 & 8 Vic. c. 56. marriages are 
declared valid which have been so- 
lemnized in certain district churches. 
By the 3 & 4 Vic. c. 72. provision is 
made for the solemnization of marriages 
under the 6 & 7 W. 4. c. 85. in the 
districts in or near which the parties 
reside.] 



412 APPENDIX. 

marriages may be solemnized in all churches and chapels erected 
and consecrated since that time, in which it had been customary 
and usual before the passing of the Act (July 69 1825) to solemnize 
marriages. 

In the case of Pertreis v. Tondear (a)y it seems to have been con- 
sidered as open to doubt, whether a marriage in the chapel of a 
foreign ambassador might not be considered as partially exempted 
from the operation of the former Marriage Act. The ceremony took 
place in the chapel of the Bavarian ambassador without banns or license: 
the husband was one of the suite of the Spanish ambassador:, the 
woman had been four months in England, and did not appear to belong 
to the household of any ambassador. It was argued, that an ambas- 
sador's house and chapel were to be considered as part of the country 
to which he belonged, and that the Marriage Act would not therefore 
extend to persons residing there. On the other hand, the words of 
the Act were relied on; and a case of Hienel v. Fierville, 1783, was 
cited, where it was said that a marriage solemnized in the house of 
the Venetian ambassador was declared null. Lord Stowell said, it 
had perhaps never been formally decided that the supposed privilege 
in ambassadors' chapels existed ; but if it did, he thought it dif&cult 
to bring this case within it, as neither of the parties belonged to the 
country of the ambassador ; and the woman had been in England long 
enough to acquire a matrimonial domicile, and it did not appear that 
she had been living in a house intitled to this privilege. 

In this case, as well as in that* of Kuding v. Smith (6), Lord 
Stowell's opinions seemed to incline in favour of the privilege ; but 
whatever rule might be deduced from a consideration of general inter- 
national law, it would be diiScult on any such grounds to establish an 
exception to the positive expressions of the Marriage Acts. On the 
other hand, it is to be observed, that if this privilege did not exist, 
it would lead to the conclusion, that persons solemnizing mar- 
riages in those chapels are liable to prosecution for felony. Under 
the present Act, the clauoe of nullity applies only where the parties 
knowingly and wilfully intermarry in a place not a church or 
chapel wherein banns may be lawfidly published ; and if, therefore^ 
the parties acted bond fide^ it would probably be held that the case 
did not come within that clause ; and if so, the validity of the mar- 
riage would depend on the general law prevailing before the old 
Marriage Act: 

(rt) 1 Ilagg. 136. (J) 2 Ilagg. 386. j 



AP1»ENDIX. 



413 



The second ground of nullity under the present Act, is knowingly 
and wilfully intermarrying without a due publication of banns, or 
license from a person having authority to grant the same. 

Under the former Act, 26 Geo. 2. c, 33, it was held that the 
banns must be published in the true names of the parties; for 
though this was not expressed, it was implied in the direction, that 
the true christian and surnames were to be notified to the minister, (a) 
A publication of banns with false names was, therefore, held to be 
no publication at all ; and as the eighth section made void marriages 
solemnized without banns or license, it was held that when the 
marriage took place upon a publication of banns in false names, it 
was absolutely void, without reference to the age of the parties or the 
object of assuming the name, (b) And if, instead of making use of 
an entirely false name, the real name was varied so as to disguise its 
identity nearly as much as a total change would do, the misnomer 
was for the same reason fatal, from whatever cause it might have 
arisen, (c) 

A name acquired by reputation only, has been held to be the true 
name within the meaning of the statute, (d) And this is the rule 
which governs the case of illegitimate children, who have no surname, 
except what they acquire by repute, though usually designated by 
the name of the mother (e) : the name by which they are usually 
known is that which should be used in the publication of banns. (/) 
In one case. Lord Stowell observed, that an illegitimate child might, 
at different times and places, pass under a variety of names, so as to 
arrive at a marriageable age without being possessed of any name 
clearly ascertainable as belonging to her. He thought that such a 
case would not be within the statute, as the party being without 
a true name, a literal compliance with the law would be impossible ; 
and the marriage of such a person might be judged of upon the 



(a) King v. BillingBhurst, 3 M. & S. 
250 : Fougett v. Tomkins, ibid. 262 ; 2 
Hagg. 142 ; 1 Fhill. 499. 

(b) FranUand v. Nicholson, 3 M. & 
S. 259 : Mather v. Ney, ib. 265 : and see 
2 Hagg. 254 : [and Rex v. Inhab. of Tib- 
shelf, 1 B. & Ad. 190 : Allen v. Ward, 
1 Bing. K. C. 8 ; 4 Moo. k S. 165 : 
Farquharson v. Farqnharson, 3 Add. 
282.] 

(c) 2 Hagg. 254. 

(d) King V, Billingshurst, 3 M. & S. 



250: King v. Burton upon Trent, ib. 
537 : Majhew v. Majhew, ib. 266 ; 2 
FhilL 11 : Wilson v. Brockley, 1 Fhill. 
132 : and see 3 M. & S. 260 : [and Rex 
o. Inhab. of St. Faith's, Newton, 3 
Dowl. & Rj. 349 : Diddear v. Faucit, 
3 Fhill. 580.] 

(c) Wakefield v, Wakefield, 1 Hagg. 
394 ; 1 Fhill. 134, n. : see 2 Hagg. 253. 

(/) Sullivan v, Sullivan, 2 Hagg. 
238 ; 3 FhilL 45 : Wilson v. Brockley, 
1 Fhill. 132. 



414 APPENDIX. 

footing of the old canon law, under which such a defect in the banns 
would not impair its yalidity. The case before him approached, in 
its circumstances, very nearly to the case put ; the name used in the 
banns was the name of the party's mother, by which she had been 
baptized^ and which she had used upon various occasions : and though 
several other names had been assumed. Lord Stowell thought that 
this was not so dearly demonstrated to be an untrue name, if she did 
possess a true name, as to warrant him in declaring the marriage 
void, (a) 

In cases where the publication of banns takes place in names 
partially altered from the true names, and where the variation is not 
so important that it must necessarily deceive, or where ^^ the dis- 
guising effect of the variation does not appear on the very face of the 
name,'' different considerations were applied. Such variations may 
be in different degrees from different causes, and with different effects ; 
and the Courts, though not inclined to encourage a dangerous laxity, 
would not disturb honest marriages by a pedantic strictness. If,. 
without any design of fraud, there had been an accidental mistake of 
this description, the marriage was not vitiated by it. But if the 
erroneous publication was known to the parties, and intended by 
them to deceive a third person, as the father or guardian, the strict 
letter of the law was enforced ; and the alteration of name, though not 
in itself sufficient to avoid the marriage, was held fatal when originating 
in such a fraudulent design. The Court, it was said, would hold 
against the party, that what he intended to be sufficient to disguise 
the name, should be so considered against him. (b) The question, 
therefore, in these cases was, whether the partial misnomer was casual 
or fraudulent. It was open to explanation ; if none was offered, the 
Courts, in general, inferred that the variation was not bondjide: but 

(a) Wakefield r. Wakefield, 1 Hagg. done, and not upon the intention with 

394 ; 1 Phill. 134, n. : and see Mayhew which it has been done. The rules, 

V. Mayhew, 3 M. & S. 266. thus applied, have naturally led to the 

(h) See 2 Hagg. 255. The principles idea, that the intention of fraud may be 

applied by the ecclesiastical courts to stronger evidence of the insufficiency 

these cases seem tx> have proceeded of the publication as against the guilty 

rather upon views of natural equity party, than it would be as against the 

than upon a strict interpretation of the innocent one; and that the decision 

statute. The clause of nullity applies may, therefore, vary according as the 

only to marriages without publication one or the other is plaintifif. See 

of banns. The only inquiry, therefore, Poynter on Marriage, p. 33. Yet it is 

is, whether that which has taken place plain that, under the statute, this can 

is publication of banns, depending, make no dificrence. 
therefore, only upon what has been 



APPENDIX. 



415 



if the explanation given^ by tracing the error to causes perfectly 
innocent, protected it irom the imputation of fraud, the publication 
was recognized as a due publication. If the explanation left it 
doubtful what was the intention, evidence of general fraud might be 
let in, for the purpose of illustrating the intention with which the 
inaccurate designation was resorted to. (a) But since the Court is 
precluded by the statutes (&) from receiving evidence of the non- 
residence of the parties in the parish in which the publication took 
place, it seems that that fact is not admitted to be pleaded, even with 
the view of proving a fraudulent intention, (c) It is to be observed, 
that in cases of this description, where a fraudulent design formed one 
of the ingredients, the question did not arise if there was no person 
whose rights could be affected by the fraud, as in the case of both 
parties being of age, and aware of the circumstances, and there being 
no impediment to the marriage, (d) But it seems that even if there 
were no person competent to object to the publication of banns, and 
if there could, therefore, be no design of eluding observation, still if 
a varied name was assumed by one party, with the view of imposing 
upon the other, the marriage might be successfully impeached by the 
injured party, on the ground of this fraudulent misnomer, (e) 

In cases of a partial variation of name in the banns, an intention of 
£raud has, in general, been alleged ; and it is not, therefore, easy to 
collect what degree of variation would be deemed so material as to 
invalidate the marriage, if unattended by circumstances of fraud. It 
has, however, been decided, that the addition of a final s (/), or the 
omission (^) or the interpolation (A) of a christian name, would not in 
itself be fatal On the other hand, it appears to have been considered 
that alterations of the surname from Meddowcroft to fViddowerqft (i), 
and from Longley to Long (A), so far varied the substance of the name 



(a) Pougctt V, Tomkiiu : Sullivan t?. 
Sallivan, vb tup. 

(b) 26 Geo. 2. c. 83. 8, 10 : 4 Geo. 4. 
c. 76. 8. 26. 

(c) Tree r. Quin, 2 Phill. 14 : see 2 
FhiU. 104 ; 2 Hagg. 147. 

(d) See Majhew v. Mayhew, 3 M. & 
S. 266; 2 Pblll. 11. It is not men- 
tioned in the latter report, that the 
woman had been generally known by 
the name used in the banns. 

(e) Heffer v. Hefier, 3 M. & S. 265 : 
Fellowes v. Stewart, 2 Fhill. 238. 257. 



(f) Dobbyn v. Comeck, 2 Phill. 102. 

(g) Fougett V. Tomkjns, 3 M. & S. 
262 ; 2 Hagg. 142 ; 1 Phill. 499. 

(h) Sullivan v. Sullivan, 2 Hagg. 
238 ; 3 Phill. 45 : Hefier v. Hefier, 3 
M. & S. 265 ; 2 Hagg. 255, n. : Green 
V. Dalton, 1 Addams, 289. 

(i) Meddowcroft r. Gregory, 2 Hagg. 
207; 2 Fhill. 365, [affirmed in the 
Privy Council, Meddowcroft v, II u- 
gonin, 8 Jur. 431 : and see Ferry v, 
Meddowcroft, 10 Beav. 122.] 

(k) r. Longley, 1 Phill. 148, n. 



416 APPENDIX. 

as to be alone sufBcient to annal the marriage. In other cases, where 
sentences of nullity have been pronounced, from partial alterations of 
the name, attended with circumstances of fraud, it was not necessary 
to decide whether the misnomer alone would have been followed by 
the same result, (a) 

These were the principles which governed the decisions in cases 
of nullity of marriage from publication of banns in false or varied 
names, while the statute 26 Geo. 3. c. 33, was in force. Under the 
statute 4 Geo. 4. c. 76, the clauses requiring the notification of the 
true names to the minister remain the same : and this statute must 
therefore, in the same way as the former, be held to intend that the 
true names shall be used in the publication of banns ; but a defect in 
this particular will not be &tal, unless it appears that the parties 
knowingly and wilfully intermarried without a due publication. [(&)] 
The parties will, therefore, be relieved from the penalty of nullity, 
where a wrong name is used by mistake, or where the misnomer is 
occasioned by one party, without the knowledge of the other, [(c)] 
Thus, cases where a false name is assumed by one party, with a view 
of imposing on the other, will not come within this section. 

It is to be observed, that the former statute rendered the marriage 
void, if had without publication of banns; the expression in the 
present is, ^^ without due publication." A publication in false names 
or in names fraudulently varied, was brought within the former 
statute, as being held to be no publication at all. Perhaps a slighter 
variation, wilfully resorted to, may come within the present statute ; 
as it may be contended, that a publication of banns may take place 
under circumstances making it an undue publication, though not 
amounting to so wide a departure from the proper form as to warrant 
the courts in holding it to be no publication. [It seems that a 
marriage without any publication of banns will be within this clause 
as a marriage without due publications of banns, (d) ] 

It is possible, also, that cases may arise under the present act, where 
other irregularities (distinct from any variation of the names) may be 

(a) Wyatt v. Henry, 2 Hagg« 215 : for bigamy by contracting a concertedly 

Stanhope v, Baldwin, 1 Addams, 93. invalid marriage : Rex v, Fenson, 5 Car. 

[(ft) Wiltshire r. Prince, otherwise & P. 412.] 

Wiltshire, 3 Hagg. Eccl. R. 333 : Tongue [(c) Rex v. Inhab. of Wroxton, 4 B. 

r. Allen, 1 Curt. 38 : S. C. Tongue v. & Ad. 640 ; 1 Nev. & M. 712 : Wright 

Tongue, 1 Moo. P. C. C. 90 : Brealey v. Elwood, 1 Curt. 48. 664.] 

r. Reed, 2 Curt. 833. But the parties [(fl) Wright r. Elwood, 1 Curt. 673.J 
will not be allowed to evade punishment 



APPENDIX. 417 

practised in the mode of publishing the banns, which may be consi- 
dered to render it an undue publication. However, no objection can 
be made on the ground of non-residence in the parish in which the 
publication took place, (a) 

It was in one case made a question, whether a marriage be invalid 
if the banns be published in one parish, and the solemnization takes 
place in another, (h) The two statutes are alike on this point, both 
directing that the marriage shall be solemnized where tha banns have 
been published, and in no other place ; but not in terms enforcing 
this direetion by the clause of nullity* If the parties be resident in 
the parish where the publication takes place, it is a due publication ; 
and though the marriage be solemnized in the wrong parish^ it is not 
within the (dause of nullity^ if it takes place in a chuirch or chapel 
properly qualified. But if the parties be not resident in the parish 
where the publication takes place, the- question^ would be, whether 
the irregularity would be prot^ted by the 26tksection. That section 
applies to cases where there has been a solemnizatipa u^der a publi-« 
cation of banns, and it may be doubted whether it would apply to 
a case where the banns as published did not authori^^e the solem* 
nization* 

The nullity arising firom the want of a license, by the present act, is 
confined to cases where the parties knowingly and wilfully intermarry 
without a license from a person of persons having authority to gmnt 
the same. Under the former act, which did not contain the words 
knowingly and wilfully, it was doubted whether want of authority in 
the person granting the license would annul the marpgige, if no fraud 
was contemplated by the parties, (c) Under the. present act, this 
question cannot arise ; and if a case should happen of a license being 
purposely procured from a person not duly authorised, the clause 
would apply* [But the want of authority must be known to both 
parties, (d)] It would also apply to a marriage by a forged license. 
A misdescription of the persons, a variation in the name, where there 
is no doubt about the identity («), or the use of an assumed name by 
which the party is commonly known (/), will not vitiate the license. 

(a) 4 Geo. 4« cap, 76, sec. 26. [See (c) Balfour v. Carpenter, 1 Fhill. 204. 
Connell v. Masson, 10 Law J. 140. [(eQ Dormer v. WUliams, 1 Curt. 870.] 
However, the clergyman is liable to be (e) Ewing v, Wheatlej, 2 Hagg. 175. 
proceeded against in the Ecclesiastical (/) Cope v, Burt, 1 Phill. 224 : King 
Court for such an irregularity : Wynn v. v. Burton upon Trent, 3 M. & S. 537. 
Davies, 1 Curt. 69.] [See also Clowes v. Clowes, 3 Curt. 185 ; 

(b) Stallwoodo.Tredger,2Fhill.287. S. C. Clowes v. Jones, 7 Jur. 903: 

VOL. II. . E E 



418 APPENDIX. 

But there may be a degree of fraad in the descnpticm which would 
have that effect (a), and which, it seems, would be fatal to the validity 
of the marriage ; for unless the description in the Hoense can be shown 
to apply to the parties who were married, the case must be consi- 
dered as that of a marriage between two persons under a license 
granted to two others, and this would be the same as a marriage 
without license, th^e being no lieense for that marriage. 

In one ease, an alteration was made in the license by the parties 
before the marriage, correeting the spelling of the name, by changing 
it from Ewen to Ewing : this was held not to affect die marriage, (b) 

The other eatise of nullity, under the present act, is knowingly and 
wilfully consenting to or aequieseing in a soiemnization of the marriage 
by a person not in holy orders. The aet does not apply to eases 
where the marriage is solemnized by a layman, pretending and sup- 
posed by the parties to be a clergyman: the validity of the marriage, 
under sueh eircumstances, will depend upon the law prevailing before 
the Marriage A^t 



The objection to the validity of marriages duly solemnized accor- 
ding to the laws of a foreign state, to which the parties have resorted 
in order to avoid the legal restraints existing in their own country, 
though apparently sanctioned by Lord Mansfield (e), has not pre- 
vailed either with respect to marriages in Scotland, or with respeet to 
marriages in other plaees out of England (d) ; and there does not appear 
to be any exception to the ruje, ^^that a foreign marriage, valid ae* 
cording io jthe law of the place wh^e eelebrated, is good every where 
else.** (e) 

And the eon*:v;er8e of this rule will in general hold. Thus, in 
Scrimshire v. Scrimshire (/), Middleton v. Janverin (^), and Lacon v. 
Higgins (A), [and Kent f). Burgess (i),] marriages of English subjects 
abroad, celebrated according to the foreign ceremonial, but which, 
from being irregular or clandestine, were void under the foreign law. 

Lane v* Goodwin, 4 Q. B. 361 ; 3 Gale See p. 428, and see 2 Hagg. 414 : Ambl. 

6 D. 610 ; 12 Law J. N. S. Q. B. 157 { 404 : Harg. C5o. Litt. 79, ft, note 1. 

7 Jur. 372.] (e) 2 Hagg. 890 : [and see Swift v 

(a) Ewing ». Wheatley, 2 Hagg. 175. KeUy, 8 Knapp. P. C. C. 287.] 

(b) Ibid. (/) 2 Hagg. 895. 

(c) Robinson v. Bland, 2 Burr. 1077 ; (g) Ibid. 437. 

1 W. Black. 234. (A) 3 Starkie, 178. 

1(d) Harford v. Morris, 2 Hagg. 423.] [(0 H Sim. 361 ; 5 Jur. 166.] 



APPENDIX, 41 9 

were also held to be void in this country. But the principle^ that a 
question of the nullity of a foreign marriage between British subjects 
is to be governed by the lex hd, is subject to some exceptions. 

Marriages in British factories^ and in chapels of British ambas- 
sadors abroad, have by a late statute (a) been declared valid, and 
before that time they were sometimes considered as forming an ex- 
ception to the general rule. In Ruding v^ Smith (&), Lord Stowell 
stated, that marriages in English factories abroad are regulated by 
the law of the original country, to which they are still considered 
to belong. Practice had in several instances established the prin- 
ciple, that the genei?al law of a country should circumscribe its own 
authority in this matter, and where the practice was admitted, it 
was intitled to aoc^tanoe and respect^ It had sanctioned the mar* 
riages of foreign subjects in the houses of the ambassadors of the 
foreign countries to which they belonged. £[i& Lordship was not 
aware of any judicial recognition upon the poin^ but the reputation 
which the validity of sudi marriages had acquired; made such a re* 
cognition by no means improbable, if such a q^uestion. were brought 
to judgment, (e) He thought, that if such a pi^actice had been sano« 
tioned by long acquiescence and acceptance of the one country, which 
had silently permitted such marriages, and of the other which had 
silently accepted them, the Courts of this country would not incline 
to shake their validity upon large and general theories, encountered 
as they were by numeious exceptions in the practioe of nations. 

It will be observed, that these remarks in fayoui; of the validity of 
such marriages rest in a great measure on the supposition of their 
being sanctioned by the law or the practice of the country where they 
may be celebrated, and therefore leave it doubtful whether they 
could have been supported (before the lade statute) if olearly void ao« 
cording to the lex loci. In one case. Lord EUenborough said that 
marrii^es in ambassadors' chapels^ if made by the allowance of the 
foreign state, would be good marriages in those countries ; but that, 
if not a good marriage in the place where it was celebrated, it could 
not be a good marriage any where, (d) However, the Lord Chan- 
cellor is reported to have given his opinion in the House of Lords^ 
that there was no doubt about the validity of such marriages. 

Another distinction was made (before the late statute), with respect 
to the marriages of British subjects celebrated in a country in the 

(a) See post (c) Ibid. 386. 

(by 2 Hagg. 371. (d) 10 East, 286. 

E E 2 



420 APPENDIX. 

military occupation of British troops, which were considered to be 
subject to the English law, in the same manner as marriages in British 
colonies and settlements. Thus, where an officer of the army of oc- 
cupation in France was married to an English lady by the chaplain 
to the forces. Lord Stowell intimated an opinion, that the marriage, 
though void according to the French law, would be supported here, on 
the ground that under the circumstances the parties were not Freneh 
subjects under the dominion of French law. (a) And it was partly 
for the same reason, that in Ending v. Smith, a marriage between 
two British subjects at the Cape of Good Hope, at the time when 
that place was occupied by English troops under « capitulation, was 
held to be valid, though void under the Dutch laws, which were in 
force there, (b) The same principle was applied by Lord Ellen- 
borough to the ease of a marriage between a soldier serving with the 
English army in St Domingo, and an Englidi woman, (e) 

The late statute 4 Geo. 4. chap. 91, recites, that it is expedient to 
relieve the minds of aH his Majesty's subjects from any doubt eon* 
eeming the validity of marriages solemnized by a minister of the 
church of England in the ehapd or house of any British ambassador 
or minister residing abroad within the country to the court of which 
he is accredited, or in the chapel belonging to any British factory 
abroad, or in the house of any BritiA subject residing at sueh factory, 
as well as from any possibility of doubt concerning the validity of 
marriages solemnized within the British lines, by any chaplain or 
officer, or other person officiating under the orders of the eommanding 
officer of a British army serving abroad; and it then enaets and 
declares, that all such marriages as aforesud shall be deemed and 
held to be valid in law, as if the same had been solemnized within 
his Majesty's domiifions, with a due observance of all forms required 
hj law. 

It was coneddered previously to this statute, that the supposed 
privilege of ambassadors' chapels would only extend to cases where 
both the parties were subjects of the country of the amba^ 
sador (d) ; but the expressions of the enacting part of the statute 
apply, whether the parties are or are not British subjects. [(«)] 
With respect to marriages within the lines of a British army abroad, 
it supplies defects arising from the non*observance of any forms, or 

(a) Bum V, Farrar, 2 Hagg. 369. (d) See Pertreis v. Tondear, I Hagg. 

(b) Ibid. 387. 136. 

(c) King V, Brampton, 10 East, 282. [(<?) Lloyd v. Petitjean, 2 Curt 251.] 



APPENDlT. 421 

from the want of a clergyman : but marriages in factories or ambas- 
sadors' chapels, not performed by clergyman of the church of England> 
are left in the same situation as before, (a) 

It was intimated by Lord Stowell, in Buding v. Smith, that 
where a compliance with the regulations established in a foreign 
country waa impossible^ the necessity of the case might exempt it 
from the operation of the lex loci. If from legal or religious difficulties- 
the ceremony could not take place according to the law of the country,, 
the law of England did not (as he conceived it) say that its subjects 
should not marry abroad, (b) The case before him he thought as' 
nearly intitled to the privileges of strict necessity as could be : the- 
husband had attained the age of twenty-one years, but being under 
thirty the consent of his father was required by the Dutch law9 
prevailing at the Cape: the wife was a minor without any legal 
guardian : and one of the grounds of decision was stated to be the in- 
superable difficulty of obtaining any marriage according to the Dutch 
Law. (c) 

If the law of the foreign country imposed any highly unreasonable 
restraints upon marriage, it might perhaps be held in England, that 
the marriage of British subjects in a manner conformable to the 
general law of England was valid. Thus, in Buding vt Smith, Lord 
Stowell puts the case of a foreign law, fixing the period of majority 
at an advanced period of life, as forty ; and suggests that it would 
be a question, whether the marriage of two British subjects, not 
absolutely domiciled abroad,, should be invalidated on that ground. 

(a) By another statute passed in the unto belonging, as if the same had been 
same session (4 Geo. 4. chap. 67), re- solemnized before the abolition of the 
citing, that the British factory at St. said factory. [By the 3 & 4 W. 4. c. 45. 
Fetersburgh was, by a manifesto of the marriages were declared valid which 
Emperor of Russia, declared to be abo- had been solemnized* at Hamburgh since 
lished from the 20th of June, 1807,. it is the abolition of the Bjriti^b factory 
enacted that all marriages (both or one there.J. 
of the parties thereto being subjects or (b) 2 Hagg. 391. 
a subject of this realm) that have since (c) The statute 57 Geo. 9, chap. 31, 
the 20th of June, 1807, been solemnized, cited an/«, [p. 383,]. declaring void mar« 
or that shall hereafler be solemnized at liages in Newfoundland not solemnized 
St. Petersburgh, by the chaplain to the by clergymen, excepts marriages that 
Russia Company, or by a minister of may be had under circumstances of 
the Church of England, officiating in- peculifu* and extreme difficulty in pro- 
stead of such chaplain in the said chapel curing a person in holy orders to per-* 
of the said Russia Company, or in any form the celebration, and in which the 
other place before witnesses, shall be as law might on that account otherT^ise 
good and valid in law, and so deemed determine on the validity of such niar^ 
in the United Kingdom of Great Britain riages. 
and Ireland, and the dominions there- 

£ £ 3 



422 APPENDIX. 

Another distinction has in some cases been taken, with respect to i 

the marriages of British subjects in foreign countries^ in which their 
residence has been only temporary, without an animus morandu 
Though it is clear that such marriages, if conformable to the foreign 
law, are good, yet it seems questionable how far the converse of this 
proposition is true. In Harford v, Morris (a), it was stated to be 
clear, that a transient residence, by coming one morning and going 
away the next, was not such a residence as to make the lex loci 
applicable, and the marriage there was confirmed, though void ac« 
cording to the law of the coimtry where it was celebrated, (b) This 
opinion is of less weight from the sentence having been reversed 
(though the reversal was upon other grounds), and it is certainly ccm- 
trary to the doctrine of the cases of Scrimshire v. Scrimshire, and 
Middleton v, Janverin, as w«ll as to the doctrine attributed to Lord 
Hardwicke, in Butler v. Freeman (c): it is, however; favoured by 
several of the remarks which fell from Lord Stowell, in the above- 
mentioned case of Buding v. Smith. In that case his Lordship was 
of opinion, that the character of the husband, the circumstance of his 
not being a settler, but a military servant of the British government, 
coming into the country, not to purchase, to sue, or to live there, but 
in the prosecution of a furth^ voyage directed by British authority, 
ought to operate in favour of exempting him from the restrictions of 
the lex loeu (d) 

But, if foi these reasons the marriages of British subjects tem- 
porarily resident in foreign countries be privileged, the privilege will, 
it seems, be forfeited by the parties vcduntarily resorting to the lex locif 
and wiU not support a marriage which is solemnised acceding to the 
foreign ceremonial, but which, as being clandestine, is void under the 
foreign law. On this ground Lord Stowell reconciled the opinions 
which he expressed in Ruding v. Smith, with the decisions in 
Scrimshire r. Scrimshire, and Middleton v. Janverin. (e) When the 
parties have recourse to the form of solemnization established in the 
country in which tliey are, their mutual intention must, it has been * 
said, be presumed to be, that it should be a marriage or not, according 
to the laws of that country. (/) 

It is to be observed, that in all the instances in which the 

(a) 2 Hagg. 423. {e) See 2 Hagg. 393. 

lb) Ibid. 431. (/) 2 Hagg. 41 1,412 : and see 2 PhilL 

(c) Amb. 303. 285. 

(d) 2 Hagg. 389. 



APPENDIX. 423 

marriages of British subjects, celebrated abroad, in a manner not con- 
formable to the lex loci^ are considered valid by the English courts^ 
either upon general principles^ or by virtue of legislative enactments, 
it is a different question whether they are also valid in the country in 
which they took place, and in other foreign countries : the decision 
of that question must of course depend in each case upon the law of 
the particular place ip which it may happen to be raised. And hence 
it is> as Lord Stowell observes, always the safest course to solemnize 
the marriage according to the law of the country, (a) 

British subjects residing in British settlements abroad, are governed 
by the laws of England, excepting where alterations have been intro^ 
duced by express enactment. Hence, their marriages are regulated 
by the English law, which, with respect to marriages beyond tho 
seas, is the same as before the statute 26 Geo. 2. chap. 33. Thus, a 
marriage between two British subjects, celebrated at Madras by a 
Koman Catholic priest in a private room, was held to be valid, (b) 

The statute 58 Geo. 3. chap. 84, confirming marriages celebrated 
in the Briti^ territories in the East Indies, by ministers of thi& church 
of Scotland, has been already noticed. The retrospective branch of 
this statute confirms all marriages which had been thus celebrated^ 
without reference to the religion of the parties. It renders valid 
future marriages thus celebrated, both or one of the parties being 
members, or a member of, or holding communion with the church of 
Scotland, and previously making a declaration in writing to that 
effect. 

(a) 2 Hagg. 391. (6) Lautour v. Teasdale, 7 Taunt. 830; 2 Marsh. 243, 



IT E 4 



424 AITENDnC. 



No. 11. 

Of the HusbantTs Power aver the fVifs^s future Interests in Clioses in 

Action, By Mr, Jctcob, {a) 

The extent of the husband^s power over the wife's interests in choses 
in action is a subject on which there has been considerable difference 
of opinion. The decision in the case of Hornsby v, Lee {&), that an 
assignment of the wife's reversionary interest in a trust fund, made bj 
the husband for valuable consideration^ did not bar the wife's right by 
survivorship, has sometimes been questioned; and it has been sup- 
posed that the previous authorities had established the proposition that 
the husband might by assignment for valuable consideration bar his 
wife's right by survivorship to her reversionary choses in action, pro- 
vided they were such as might possibly have fallen into possession 
during the coverture. This opinion is supported by the author, who 
has collected the cases and dicta which appear to sanction it (c) : his ar- 
gument has been ably answered by Mr« T. Canning. ■(^) In a recent 
case, not yet reported (Purdew n, Jackson), the point ag^ occurred, 
before the same learned judge who decided the case of Homsby v, Lee: 
it is understood to hav.e been fully discussed and considered, and the de- 
cision was the same as in the former case. It must be Emitted that 
these decisions are contrary to an opinion which had previously been 
entertained by many members of the legal profession, but a consider- 
ation of the subject will show that this opinion is one not easily to be 
reconciled with principle, and that it has originated in some dicta, to 
which too extensive ;a meaning seems to have been ascribed. 

A chose in action not being assignable at law, an assignment of it 
can only be made effectual upon the principles of equity ; and it is 
supported in equity, on the ground that it is an agreement, by which 
the assignor is bound to give to the asrignee the benefit of that which 
he has assigned. ^^It is by agreement, in most cases of choses in 
action, that the assignee takes it. His covenant is, in this Court, a 
disposition of it that could be enforced against him ; and as against 

(a) Vide supra, vol. I. pp. 73. 75. found in No. 4. of the Appendix to this 

This dvMussion formed No. 3. of the work. 

Addenda to Mr. JacoVs edition of Roper. (d) Observations on a Case latelj 

Qi) 2 Madd, 16. submitted to Counsel, &c. By Thomas 

{c) Mr. Roper's argument will be Canning, Esq., 1820. 



ATPENDIX. 425 

hiiu, at leasty would go to the representative of the person agreeing 
with him." (a) Upon principle, therefore, the right of the assignee of 
a chose in action is derived from his right to call upon the assignor 
for a specific performance of the agreement between them ; giving 
him no original right, except as against the assignor and his represen- 
tatives. He is intitled to whatever interest the assignor himself pos- 
sesses, or is able to procure. If the husband sells the chose in action 
of his wife, he is bound by his contract to do whatever is in his 
power for reducing it into the possession of the purchaser ; and the 
right of the purchaser is therefore co-extensive with the husband's 
legal power of acquiring the property. 

In some of the earlier cases this principle was more rigorously en- 
forced than at present ; it was considered, that even if the husband 
had the power of reduction into possession, unless he actually exer- 
cised that power, his wife's right by survivorship could not be inter 
cepted by his agreement. If the husband assigned for valuable con- 
sideration a chose in action belonging to bis wife, which might have 
been immediately recovered, it was held that the wife's right by sur- 
vivorship subsisted, unless the property was actually recovered during 
the coverture, (b) The assignment not being effectual at law, it was 
thought that there was no equity to make it good as against the wife 
surviving and claiming by title paramount. 

But this doctrine seems to have given way to other principles, 
founded on the general rule, that where there has been an agreement 
for valuable consideration, the question shall be treated in the same 
manner as if the agreement had been performed. This rule, obviously 
just in cases arising between the parties to the agreement, and those 
claiming under them, has been extended to some other cases, where 
its justice is less apparent ; for some purposes an agreement to do an 
act, which the party agreeing has it in his power to do, is considered 
as if actually performed, as against third persons claiming by a distinct 
title, which might have been defeated by an actual performance. 
This equity, which perhaps originated in a notion that the omission to 
do the necessary acts for carrying the agreement into effect, was a 
species of accident from which relief should be given, is exemplified 
by the cases where agreements for the execution of powers by 
tenants for life are held binding upon the remaindermen ; and it 
seems to have been upon similar principles that assignments of the 
wife's choses in action immediately recoverable, when for valuable 

(a) 6 Ve8. 394. (b) Prcc. in Ch. 121. 419 ; Gilb. Eq. R. 103 ; 2 Free. 241. 



426 APPENDIX. 

oonBideration, have been held binding on her surviving. The husband 
has agreed that the purchaser shall have that which has been assigned ; 
this agreement might and ought to have been performed whilst he 
was living, and is therefore treated as if it had been accordingly per- 
formed, (a) 

But this principle, whether it was or was not originally well- 
founded {b)f can have no application to an assignment of a reversionary 
interest ; the husband having no legal power to reduce it into posses- 
sion, if he dies before it falls in. His agreement to place it in the 
possession of the assignee, is one that he could not have efiectuated ; 
and an agreement which could not by possibility have been performed, 
cannot upon any principle of equity be treated as if it had been jKjr- 
formed. The assignment gives to the assignee such interest as the 
husband had, and a right to call upon him to render that assignment 
effectual ; but it cannot upon principle give a right to call upon the 
wife, who is a stranger to the contract, to do that which it was never 
in the husband's power to do. 

The principle that a man cannot by contract give to another an in- 
terest which he does not possess, and which he has no means of ac- 
quiring, is so obviously just, that it would require strong authority 
to establish an exception to it. 

The case of Atkins v, Dawbury (c) is the only instance adduced 
as a direct decision, that an assignment of a reversionary interest is 
binding on the wife surviving. It seems, however, not to have been 
considered as the case of a reversionary interest. The Court said, that 
though the '^ legacy was charged on a reversion, which was not an 
inmiediate fund for the raising it, yet being given to the wife in prcB" 
sentiy when the wife comes in, it shall carry interest from the testator's 
death." The Court gave as one reason for the decision, that the hus- 
band had by his will confirmed the assignment, and given the legacy 
again in the same manner. The wife was his executrix, and if she 
took any benefit under his will, was of course bound to affirm this 
bequest. But so far as the decision turned on the effect of the as- 
signment alone, it is clear that it could not now be supported, the 
assignment having been made without valuable consideration. 

The dictum of Lord King, in Chandos v. Talbot (^, was uttered 

(a) 2 Ves. Sen. 20. (c) Gilb. Eq. Rep. 88. 

(b) See Sugden on Powers, 8d ed., [(d) Cited a«/^ vol. I. of this treatise, 
p. 346, [2 Sug. Fow. 91. 7th ed.] and p. 100.] 

the observations of Sir W. Grant, there 
referred ta 



APPEIJDIX. 427 

in a case in which the legacy assigned became payable during the 
eovertui'e, and he put the assignment on the footing of an agree- 
ment for valuable consideration. 

The dicta attributed to Lord Haidwicke, in Grey v. Kentish (a), 
and Hawkyns v» Obyn {b)^ favour the opinion that the husband's 
assignment would be effectual against the wife surviving; but it is 
to be remarked^ that in both cases the decree was in favour of the 
wife* In the first of these cases the wife's right to a provision^ and 
her right by survivorship, are confounded in the report, so that it 
does not appear upon which ground the decree proceeded. In the 
latter case, the property consisted of the interest of a fund given to 
the husband and wife for their lives and the life of the survivor ; and 
it was therefore open to considerations different from those applicable 
to a reversionary interest given to the wife alone. 

In Bates v. Dandy (c). Lord Hardwicke is reported to have said : 
*^ The husband may assign the wife's chose in action, or a possibility 
that the wife is intitled to, as well as her term, so that it be not vo- 
luntary, but for a valuable consideration ; but though he cannot dis- 
pose of her chose in action without a valuable consideration, yet he may 
release the wife's bond without receiving any part of the money." 

Upon this passage the first observation which arises is, that the ac' 
curacy of the report cannot be very confidently relied on. The first 
branch of the sentence implies that the husband cannot assign the 
wife's term, except for valuable consideration ; the second speaks of a 
bond as if it were different from a chose in action. 

These mistakes make its authority at least questionable, and as the 
case itself involved no point relative to a future interest, the ex- 
pression about the assignment of a possibility can, at most, have only 
that degree of weight which belongs to extrajudicial dicta! 

But if any inferences can be drawn from these remarks, they stand 
opposed to other cases before the same judge, in which the point is 
more explicity adverted to. 

In Bush v. Dalway (J) (which was subsequent to these three cases), 
the question related to a portion secured to the wife, payable on her 
surviving her father. Lord Hardwicke says, ** A question was made, 
whether the husband had a right to assign it in the father*8 life ; which 
is not necessary here, although I think he might not. In Theobald 

[(a) Cited ante, vol. I. of this treatise, (c) 2 Atk. 208. 
pp. 81. 82.] (d) 1 Ves. Sen. 19 ; 3 Atk. 530. 

(h) 2 Atk. 561. 



428 



APPENDIX. 



V. Duffoy, before Lord Macclesfield, an aBsignment by husband and 
wife of the wife's executory interest was held good. There the wife 
had something more than in this case ; but that turned on her joining, 
on which foundation the Court determined it for the purchaser, which 
was affirmed by the Lords. Here, before the father^s death, he had 
no right of action at all, but afterwards he might have called for it 
immediately." (a) This is a clear expression of opinion, directly 
applying to the point under discussion. 

The question in the cause was, whether the wife^s right to this portion 
was bound by her marriage settlement, by which the husband had 
covenanted that it should be settled upon certain trusts : and it was 
held to be bound, on the ground that the father having died during 
the coverture, the husband became immediately intitled. " Perhaps," 
said Lord Hardwicke, ^^ the event might have happened, that she 
would not have been bound, as if the right of action never had vested 
in the husband ; but here it did, by his surviving the father." The 
question, he added, depended on the general rule, that what ought to 
be done was considered in equity as done, and this ought to have been 
done, (2. e.) the covenant ought to have been performed in the life of 
the husband, (ft) 

So in Medcalfe v. Ives (c), where a man, by a settlement previous 
to his marriage with the infant daughter of a freeman of London, 
in consideration of a portion, covenanted with the father to release 
her customary part. Lord Hardwicke said : ^* As to the objection 
of the customary part being a possibility, and merely a contingency, 
it is of no weight, for there is no doubt but it might be released in 
equity ; but here is a covenant, which the defendant is bound by in 
all events, and it is no objection to say the wife was under age ; for 



(a) 1 Ves. Sen. 20. The report in 
Atkins contains similar expressions, with 
this addition, *^ but it has been fre- 
quently determined that a husband may 
assign a wife*s chose in action for a 
valuable consideration; but what does 
that turn uponP Why, upon the hus- 
band's right to sell.*" There is pro- 
bably some inaccuracy in the latter part 
of this passage ; Lord Hardwicke would 
have given some better reason. Ac- 
cording to both reports, he appears to 
have been distinguishing between pre* 
sent and future interests. 

(b) It is stated iu Ilomsby o. Lee, 



that the reversion fell in a short time 
before the death of the husband. The 
interest had, therefore, ceased to be re- 
versionary; and it might have been 
contended, upon the principle laid down 
by Lord Hardwicke, that the fund 
having come into the power of the hus- 
band, ought in his lifetime to have been 
received and paid to the person to whom 
he had assigned it ; and that it should, 
therefore, be bound by the assignment. 
But this point does not appear to have 
been noticed, 
(c) 1 Atk. 68. 



APPENDIX. 429 

though, in this respect if the husband were dead, the articles would 
not bind her, and she would hj survivorship be intitled to the cus- 
tomary share as a chose in action not recovered or received by the 
husband ; yet he being alive, it is a matter that accrues to him in 
right of his wife, and he may release it, and his release will bind her^ 
and therefore it was reasonable he should perform his covenant" 

In these two cases the covenants were entered into before the mar- 
riage, but it is obvious that such a covenant is equally binding on 
the husband whether made before or after ; and so far as its effect 
depends upon its being the agreement of the husband, it must be 
equally binding. 

The grounds of the decision in the case of Theobald v, Duffoy (a), 
alluded to above, in which an assignment by the husband and wife of 
a possibility of a term, not assignable at law, was supported in equity 
as an agreement for valuable consideration, also furnish an illustration 
of the law on this subject. The judgment did not rest upon the cir- 
cumstance of its being the husband's act : there is no intimation of the 
husband being competent, alone, to bind future interests of his wife 
not assignable at law : it turned on the fact of the wife having joined 
with the assent of her friends, proceeding on the notion, adopted in 
many early cases, that agreements entered into by married women or 
infants, if fair and reasonable, might be enforced in equity. 

In another case (6), it was laid down by the Lord Chancellor, that 
the husband had no power whatever to release a future right of his 
wife's ; that she might survive him, and would then be intitled to it in 
her own right. The facts were, that the wife'« father, being a free* 
man of London, the husband, after the marriage, in consideration of 
100/. f released the wife's customary part : he survived the father, and 
the release was ultimately held to be a bar. The husband being 
alive at the time when the interest in question fell in, the decision 
was consistent with the opinion expressed at first ; it seems also to 
hare turned partly on the fact of the wife having agreed to, or joined 
in the release, (c) 

The cases of Hewitt v. Crowcher, and Gregg v. Crowcher (d), in 
which the consent of the wife was taken to a sale of her reversionary 
interest in a trust fund, seem to belong to that class of cases in which 
the Court of Chancery sometimes allowed the wife's consent to be 

(a) 9 Mod. 101. (c) Prec. in Chan. 496. 

(b) Kemp v. Kelsey, Prec. in Chan. [(d) Cited on/c, vol. I. of this treatise, 
544. 594 ; 2 Eq. Ca. Ab. 267. j). 92.] 



430 APPENDIX^ 

given, considenDg its effect to be analogous to that of a fine at law. 
This practice was considered in Sperling v. Rochford (a), Richards v. 
Chambers (ft), and Pickard v. Roberts (c), and proceeded upon the 
supposition that the property was not in the power of the husband^ 
and that it could not be afFected, except by a decree founded on the 
wife's consent : it was considered that the wife's light, in the event of 
her surviving, was barred by force of the consent and the decree, and 
not by the husband's assignment Such cases, therefore, tend to 
show the limited extent of the power which the husband was supposed 
to have. 

It is most probable that the wife's consent was received by Lord 
Alvanley, in Gregg v. Crowcher, and Hewitt t>, Crowcher, for this 
purpose, and not for the sole purpose of widving her equitable tight 
to a provision. In his Lordship's opinion, ^'no interest of hers will be 
bound but by her consent, not taken by the negotiation of friends, 
but by th^ Court itself." (d) In WooUands t>. Crowcher (e), where 
these cases were produced in argument, they were understood in this 
light ; it was siud, that the consent was to be taken by analogy to a 
fine, and that without it the wife would not be bound. The Master 
of the Rolls (Sir William Grant) also considered the question to be, 
whether the wife's right by survivorship should be barred by aUowing 
her consent to be taken. *^ But in this instance," he says, ^^ the object 
is not to bar her equity to have a settlement, but to bar her right to 
survivorship, for upon his death it belongs to her entirely. She is 
giving up not her equity only, but her entire right by survivorship. 
That is not the case in which the Court takes her consent. If the 
husband has a right to convey, let him exercise his right. But why 
this Court should join and aid him for this purpose, I do not know." 
On a subsequent day his Honour said that he should take the consent 
de bene esse : the principle upon which this was done does not dis- 
tinctly appear from the short note of the judgment ; but it may be 
collected that his Honour^s intention was to receive the consent 
without prejudice, leaving open the question whether the wife would 
be bound by it if she survived : he observed that the cfiect of an 
assignment of reversionary property had been doubted, and referred 
to Saddington v. Kinsman. (/) 

(a) 8 Ves. 164. (d) 4 Ves. 18. 

(b) 10 Ves. 580. («) 12 Ves. 417. 

(c) 8 Madd. 384. (/) 1 Bro. C. C. 44. 



APPENDIX. 431 

In the case of Howard v. Damiani (a), which occurred subsequently 
before the some learned Judge, and which was heard bj consent, the 
decree was probably made with the same view as that in WooUands 
V. Crowcher ; it did not in terms absolutely confirm the sale, directing 
only that the trustees should be at liberty to make the transfer. 

In another case before Sir W. Ghrant, it was said by Sir S. Bomilly, 
in argument (probably referring to Bichards v. Chambers), that his 
Honour had decided that the husband could not assign his wife's rever- 
sionary interest : he interposed, saying, ^' That is if it could not fall 
into possession during his life, as a reversion upon his own death ; 
not if it depended upon an event that might happen during his 
life.'' (b) This may be thought to imply, that in the latter case he 
might assign it; but the remark was obviously made only to correct 
an erroneous reference to Richards v. Chambers, that case applying 
only to reversions expectant upon the husband's death, and not 
affecting the question as to other future interests. His Honour's 
observation, in another case, that the husband can dispose of his wife's 
propeEty in expectancy against every one but her surviving (c), is cer- 
tainly an authority against the opinion that he has an imqualified 
power of assignment. 

It may be observed, also, that at the time when Lord Hardwicke 
is supposed to have intimated an opinion in favour of the husband's 
power of assigning, the effect of his assignment for valuable consider- 
ation was in other respects not settled as at present. It was then 
doubtful whether it barred the wife's equitable right to a provision ; 
the reasoning which has led to the doctrine now established, that such 
an assignment does not defeat the wife's equity, applies equally to the 
present question, ^' It would be whimsical then,'* says Lord Alvanley, 
<^that the assignment by the husband for valuable consideration 
should put that assignee in equity in a better situation than the hus- 
band himself is in at law." (d) 

One ailment in favour of the husbcmd's power to bind the future 
interests of his wife by assignment for a valuable consideration, is 
founded on the power which he is supposed to possess of binding such 
interests by bis release. But if the supposition were clearly right, it 
would be difficult to msdntain any very close analogy between a 
power of assigning for a consideration, and a power of releasing with*" 
out any ; and still more difficult to show that the right to assign must 

(a) 2 Jac. & Walk. 458. (c) 4 Ves. 19. 

[b) 16 Ves. 122. (d) 1 Vea. & B. 405. 



432 APPENDIX. 

be co-extensive with the power to release. Many cases may be put 
in which a release will operate at law upon that which the party 
could not assign, as in the case of the release of a bond previously as- 
signed, a release by one or two partners, or by the husband of a feme 
executrix. If the rules of law enable a party, by his release, to pass 
a greater interest than he possesses, it does not follow that equity 
must give a similar extension to his power of contracting, or interfere 
to effectuate his attempt at alienation, invalid at law, and purporting 
to affect what does not belong to him. 

It may, however, be doubted, whether the husband has even at law 
a general power of releasing the future rights of his wife. 

In Thomson v, Butler (a), an annuity had been granted to the wife 
for her life : the husband by deed, in express terms reoiting the an- 
nuity, released it. The wife having survived him, brought a writ of 
annuity : the release was pleaded, but was held to be no bar, because 
the husband's release could not extinguish the annuity of the wife, 
but if she survived she should have an action for it. This was a case 
of personal property, the writ of annuity being' a personal remedy 
only, (b) 

To this decision, the opinion of Lord Holt, in Cage v. Acton (e), 
is opposed ; a case, however, in which his opinion does not possess the 
high authority usually attached to his name, his judgment upon the 
principal point in question having been more than once overruled, and 
the reasoning by which he supported it having been characterised by 
Lord Kenyon as merely flimsy and technical, {ct) His opinion was, 
that any right or duty, which by possibility may accrue due during 
the coverture, may be released by the husband. He admitted, how- 
ever, that a right or duty which could not accrue during the coverture 
could not be released by the husband, acording to the cases of Clark 
t?. Thomson (e). Smith r. Stafford (/), and Lupart r. Hoblyn(y), 
from which it appeared, that a covenant or promise made by a third 
person before the marriage to pay a sum of money to the wife, in the 
event of her surviving the husband, could not be released by the 
latter. And the proposition, that a legal right which cannot accrue 

(a) Moore, 522, The case is re- (d) 5 T. R. 384. 
ported on another point in Cro. Elia. (e) Cro. Jac. 571. 

721. (/) Hob. 216 ; Hetl. 12. 

(b) See Co. Litt. 144, b. (g) I Sid. 58. 

(c) 1 Salk. 325 ; 1 Lord Rajm. 515 ; 
12 Mod. 288 ; Corny n, 67 ; Carth. 511 ; 
Holt, 309 ; 1 Freem. 512. 515. 



APPENDIX. 433 

during the coverture is not releaseable by the husband, seems to be 
well settled : it is difficult, however, to find any principle for this ad- 
mitted limitation of the husband's power of releasing, unless it be 
that in this case the interest and the right of action cannot vest in 
him. And if this be the principle, it seems to follow, that the effect 
of his release depends upon his having an interest or right of action ; 
and, therefore, that it will not operate beyond the extent of his 
interest, if no right of action ever vests in him. 

In the case of a future covenant, e^ ff. a covenant to pay money a 
a future period, a release does not operate as a release of the right of 
action, none having arisen ; and a release of all actions not discharging 
a covenant which has not been broken, (a) The reason why it may 
be released by express words, is said to be, that it is a covenant in e8S€{b\ 
though the performance be future, and that the release discharges the 
present obligation and force of it. (c) But if the husband's release 
operated in this manner, its effect would apply equally to every future 
covenant made to his wife. Whether the covenant be for payment 
of money on the death of the husband, or on the death of a third 
person, it is equally a covenant in esse, and its present obligation and 
force is the same. And it would therefore follow (as it was contended 
in Smith v. Stafford (d)) that the husband might release a covenant, 
or promise, which could not take effect in his fifetime : but it has 
been held that he has not that power. 

In the case in KoUe («), it was said that the husband might release 
a legacy payable to his wife at a future day, because he had an 
interest in it before the day of payment, which interest it was clear 
he might have released. According to this case, his power of 
releasing results from his interest : and thid is consistent with the 
case of Thomson v. Butler, and with the opinion that his release does 
not operate on that which cannot take effect in his lifetime. If then 
the effect of his release results from his interest, its effect ought on 
principle to be co-extensive with that interest When the nature of 
the future right is such that he has no interest, his release is in- 
operative ; and when, as in the case of a future covenant or promise, 
he has only a limited interest, it would follow that his release ought to 
operate only so far as his interest extends. 

These observations refer only to cases where there is np immediate 

(a) Co. Litt. 292, b. (d) Ibid. 

\h) 10 Co. 51, h. lie) Cited ante, vol. I. p. 73. of this 

(c) Hob. 216. treatise.] 

VOL. II. F F 



434 APPENDIX. 

right of action. Different considerations might apply, if the future 
debt were secured, so that the husband might have an immediate right 
of action, as if a judgment bad been given, or a bond of which part of the 
condition had been broken. The case might also be different, if the 
debt were actually paid to the husband before the time of its becom- 
ing due. In that case, the defence to an action brought by the wife sur- 
viving would be different, the question depending not on the release, but 
on the payment pleaded as a performance of the covenant or promise. 

But whatever may be the rule of law with respect to the husband's 
release of a legal demand, it does not by any means follow, that the 
same rule must prevail with reference to equitable rights. The 
effects of releases of legal demands depend on many technical rules 
as to joinder in action, and the forms of pleading, which are not 
adopted in equity. The effect of a release in equity is more analogous 
to that of an agreement or a grant, than to that of a release at law. 
The plea of a release must in general show, that it was founded on 
consideration (a), and the effect of the plea is in some other respects 
different from that at law. (i) And a voluntary release of contingent 
and executory interests in equity has been held inoperative, even as 
against the party releasing, (e) In one case the Lord Chancellor 
says, that at law a possibility may be released, but distinguishes the 
case before him, because it was " a demand in equity under a trust." (c() 

In Salkeld v. Vernon («), the husband released his wife's orphanage 
share of her father^s estate, receiving legacies under his will : yet it 
was considered doubtful whether this release of a present interest, 
and for consideration, could be binding upon the wife surviving. 
With respect to future interests in choses in action of an equitable 
nature, it was expressly laid down in Kemp v. Kelsey (/), that the 
husband could not release them ; the same may be inferred from Bush 
t% Dalway, and Medcalfe v. Ives. The dictum of Lord Hardwicke 
in Bates v. Dandy, cited before, appears to allude to the distinction 
between releases of legal and equitable demands : " though he, the 
husband, cannot dispose of her chose in action without a valuable 
consideration, yet he may release the wife's bond without receiving 
any part of the money." (^) This seems to confine the husband's power 

(a) See 2 Sch. & Lef. 728 : Gilb. (d) 3 Vin. Ab. 155. 
For. Horn. 57 : Mitford on Pleadings, (e) 1 Eden, 64. 

212. [(/) Stated ante, p. 75. of this trea- 

(b) See 2 Bligh, 617. tise.] 

(c) Robinson ©. Bavasor, 3 Vin. Ab. (g) 2 Atk. 208. 
155 ; Morris v. Burroughs, 1 Atk. 399. 



APPENDIX. 435 

of releasing to legal demands, such as those on bonds, making a dis- 
tinction between them and others which he cannot affect, except for 
consideration. 

There seems, therefore, no reason for supposing, that the husband 
can release the future equitable interests of the wife, so as to bind her 
surviving. The case may be different, if the sum due to the wife is 
actually paid to him, the question then being, whether payment 
before the day is not a sufficient defence. In Doswell v. Earle (a), 
the wife was intitled to a trust fund, subject to her mother's life 
interest : the trustee, with the assent of the mother,, paid it to the 
husband, who afterwards died before the mother, leaving his wife sur- 
viving : it was held that the latter was barred. 

Another argument in favour of the opinion that the husband can 
assign the future choses in action of his wife, is drawn from a supposed 
analogy to his power over her interests in terms of years. But the 
right which the husband has in his wife's chattels real, is essentially 
different from that which he has in her choses in action. With respect 
to the latter, he acquires by the marriage only th,e right of suing for 
them jointly with her, and reducing them into his possession; but 
until they are reduced into possession the whole right i& in her. If the 
husband dies first, her right continues ; and if a suit has been com- 
menced, his death doea not cause an abatement, except under particular 
circumstances, {b) If she dies first, the right of action which the 
husband acquired by the marriage ceases : thfe property is still hers ; 
the husband can only sue for it in the character of her admini- 
strator (c), and takes it subject to her debts, (rf) 

On the other hand, with respect to the wife's chattels real, he ac- 
quires a legal estate by the marriage ; he may bring ejectment in his 
own name (e), and on her death this estate continues in him, in his 
own light, without taking out administration. (jT) His power of 
assigning a legal interest in a terra, is a legal power depending on the 
nature of his estate ; his power of assigning an equitable interest in a 
term arises by analogy to his power over a corresponding legal in- 
terest {g) ; and hence, in either case, his assignment does not require a 
consideration to support it : its effect does not depend on contract. 

(a) 12 Ves. 473. (d) Ibid. 

(b) Anon. 3 Atk. 725: Coppin r. [(«) Vide ntprd, y oh 1.^,109, o£ thin 
., 2 P. W. 496 ; M itford's Plcrd- treatise.] 



ings, p. 47. [(/) Ibid. p. 95.] 

(c) Vide suprd^ vol. I. p. 41. of this [(g) Ibid. p. 99.] 
treatise. 

FF 2 



436 APPENDIX. 

But his assignment of a chose in action can only take effect as a con- 
tract. There is, therefore, no analogy between the cases. 

The authorities do not settle how far the husband's power extends, 
with respect to those executory and contingent interests in legal terms 
of years which are not assignable at law, and with respect to corre- 
sponding equitable interests. According to Lampet's case (a), he may 
release them ; but in that case the husband was alive at the time 
when the interest vested. An interest of this description resembles 
a chose in action in not being assignable at law 5 and therefore an as- 
signment of it must, it is said, be for valuable consideration (&), and 
is treated as standing on the footing of an agreement, (c) It seems, 
therefore, that the question, whether the husband's assignment of such 
an interest will bind the wife surviving, depends upon principles 
similar to those which apply to his assignment of her future choses in 
action. 



No. III. 

Observations by Mr. Spence on the case ofHore v. Becker, (rf) 

The following decision of the Vice- Chancellor of England, reported 
in the 12th vol. of Mr. Simons's Keports, p. 465, seems to us on many 
accounts to deserve particular attention. 

Robert Becher executed a bond to A. Frazer and John Becher, in 
the penalty of 2000Z., conditioned for securing an annuity of lOOZ. a 
year to Mary A. Dickenson, spinster, for her life, and by a deed of 
even date, but which did not affect the question, he assigned to the 
obligees an annuity for another person's life, and a policy of insurance 
for further securing the annuity to M. A. Dickenson. 

Afterwards M. A, Dickenson married John Turton. Then Bobert 
Becher, the obligor, died, and his brother Richard Becher became his 
administrator. The annuity being in arrear, Mr. and Mrs. Turton 
threatened to commence proceedings at law and in equity against 
Richard Becher as the personal representative of Robert, and against 
Frazer and John Becher, the obligees, as trustees, to recover the 
arrears and enforce the future payment of the annuity. On this, all 
parties came to a compromise, and Mr. and Mrs. Turton executed a 

(a) 10 Co. 46. (c) Theobald ». Duffoy, 9 Mod. 102. 

(h) 1 AtJc. 280 ; 2 Atk. 208. \d) Vide supra, vol. I. p. 75. 



APPENDIX. 437 

deed, whereby, in coneideration of 500L paid to them by John Becher 
they released Frazer and John Becher, the trustees, and Kichard 
Becher, the administrator of Bobert, the obligor, from all claims in 
respect of the annuity of 100/., or the securities for the same. But the 
obligees did not release the bond to Bobert, so that the legal obligation 
continued to be still subsisting. 

The two obligees died ; John Becher was the survivor. Mr. Turton 
also died, and his widow married S. Wood. A bill was then filed by 
Hore, the personal representative of John Becher the surviving 
obligee, and who had paid the 500/., against Bichard Becher, the per- 
sonal representative of the obligor, and Mr. and Mrs. Wood; and one 
question was, whether it was competent ta Mr. Turton to release hia 
wife's annuity except during the coverture ; if not, Mr. Wood, in right 
of his wife, would have been intitled to receive the arrears which 
accrued due from the death of Turton. 

It was admitted in the argument, on the authority of Stiffe v. 
Everitt (a), that an assignment by Turton the husband would not 
have affected the payments to become due subsequently to his death, 
but the distinction was taken^ that this was a release. His Honour 
decided that the release effectually destroyed the bond as against the 
wife. ** If a man/ said that very learned judge, " gives- a bond or a 
promissory note to secure an annuity to a single woman, and die after- 
wards marries, her husband may release the bond or note, and if he 
releases the security, there is an end of the annuity ; " and he seems 
to have considered that it made no difference that the wife was not 
herself the obligee. 

Lotus see how the. case of a release by the husband of the wife's 
annuity stands at law where the wife was intitled to it dum sola. 

Marriage is an absolute gift of all chattels personal io possession in 
the wife's own right, whether the husband survive the wife or not, 
but if they lie in action, as debts by obligation, contract, or otherwise, 
the husband shall not have them unless he and his unfe recover 
them. (J) If the debt or duty is presently recoverable, there can be no 
doubt that the receipt of it(c) or a release (c/) of it are equally 
available to bar the right of the wife, whether the securities be or not 
left outstanding, and of whatever nature they may be. 

(a) 1 M. & C. 37. {d) Diet. Lord Hardwicke, Bates o, 

(Jb) Co. Litt. 851, h. Dandy, 2 Atk. 208, &c. 

(c) Bosvil ». Brander, 1 P. W. 458 : 
Rees 9. Keith, 11 Sim. 390. 

F F 3 



438 APPENDIX. 

But does an annuity secured to the wife by bond stand in this pre- 
dicament ? 

By the stat, 8 & 9 W. 3. c IL sec. 8, in all actions in any Court of 
record upon any bond^ or in any penal sum for non- performance of any 
covenants or agreements contained in any deed, ftc, the plaintiff may 
assign as many breaches as he shall see fit. The jury are to assess 
the damages for the breaches proved at the trial, and the like judgment 
(that is, for the entire penalty) is to be entered as before the Act, and 
the judgment is to remain as a further security to answer to the 
plaintiff such damages as he may sustain by any further breach and 
so toties quoties. This act, as is well known, is held to be compulsory 
on the plaintiiF(a), so that he must assign breaches and take out exe- 
cution accordingly ; he cannot recover the entire penalty. A bond for 
payment of an annuity has been expressly held to be within the 
statute, (b) If any further breaches are committed, the act directs that 
the plaintiff may toHes quoties sue out a §c{re facias upon the judgment. 

If, therefore, husband and wife bring an action on a bond to secure 
an annuity given to the wife dum sola, and the wife must be joined, 
the action being in the name of both, the judgment must also be in 
the name of both. Even a judgment in the name of the husband 
without execution does not alter the property, (c) If so, who would be 
intitled to the scire facias after the death of the husband ? Surely the 
wife, and not the personal representative of the husband. What, 
then, would be the effect at law of the release of the husband either 
before or after action brought ? A release of all manner of demand, 
says Littleton (d), is the best release to him to whom the action is made. 
But the husband, as it would appear, has no demand for any payment 
of the annuity other than those that are due or may become due 
during his life. The statute prevents his recovering the entire 
penalty. The release of the husband, then, as it appears to us, can 
only release that which he can demand and enforce, namely, the arrears 
and accruing payments during his life, A release of all claims does 
not discharge rent before it is due. (e) To say that the husband can 
release the bond or the penalty itself, when another person besides 
himself, namely, the wife surviving, may in a certain event have an 

(a) Serj. TViUiams's note to Gainsford (d) Sec. 508, Co. Litt. 291, b, 

V. Griffith. 1 Saund. 58. (c) 1 Sid. 141 : note 251 to Co. Litt.: 

(b) Collins V. Colling, 2 Burr. 820 : Co. Litt. 292, &, is to the same effect 
Walcot V. Colliding, 8 T. R. 126. 

(c) Eden's note to Ileygate r. An- 
neslej, 3 Bro. C. C. 362. 



APPENDIX. 439 

interest In it, which interest he cannot, as it appears, by any means 
reduce into possession, appears to be to assume the question. 

But there is what appears to us an express decision on the point. 
In the case of Thomson t?. Butler (a), which L. C. B. Comyn, of 
himself authority, has entered in his Digest (ft), it was decided, to 
use his language, " that if the wife has an annuity for life, a re- 
lease by the husband does not bind the wife if she survives." It is 
true that the annuity in that case may have been secured on land {c\ 
and the circmnstance noticed by Mr. Jacob (^, that the action was 
by writ of annuity, is not conclusive against this 8uppo»tion,.for a per- 
son has the option of bringing a writ of annuity to charge the person^ 
though the annuity be secured on land with power of distress. (^) 
The probabilities, however, are that it was not so secured. So impor- 
tant a circumstance would hardly have been omitted in the report, if 
it had existed, and had influenced the judgment of the Court. A 
better mode of getting rid of the eflFect of that case perhaps would have 
been to cite against it Lord Holt's dictum to the contrary in the case 
of Cage V. Acton (/), but which is very much weakened by Lord 
Kenyon's observation (^) in his ai^ument on the principal point of the 
case, on which the two other judges differed with him in opinion. 

If our view, as above stated, be correct, what equity had the plaintiff 
in Here r. Becher to be relieved from his obligation to enforce the 
bond for the benefit of the wife ? If we are right, even if the wife 
had been the obligee, the release would not have bound the wife 
surviving. In the case before us, the wife was not the obligee ; ex 
concessis, the legal obligation remained as far as the obligees were 
concerned ; the release was not made by but to them ; indeed it was 
owing to this circumstance that the bill was filed. The very same 
reasons that would have operated to prevent the obligor from taking 
advantage of the release ought surely to have prevailed as regards the 
obligee, called upon by his cestui que trust to enforce the bond against 
the obligor. 

It will be seen that our view of the case of Here v. Becher i& wholly 

(a) Moore Rep. 522. (/) 1 Freeman, 512^ aud in several 

(b) Title Baron & Feme, K. other books. 

(c) See Judg. of the Vice-Chancellor • (g) Milbourn t . Ewart, 5 T. R. 384 : 
in Hore v. Becher. see 2 Rop. H. & W^ addenda by Jacob| 

(d) 2 Roper's Husband and Wife, pp. 518, 519. [an^<s, p. 432.] . 
p. 518. [ante^ p. 432.] 

(e) Littleton, sec. 219 : Bac. Abr. 
tit. Annuity, C. ; yoI. I. p. 240, 7th ed. 

r F 4 



440 APPENDIX. 

irrespective of the doctrine that he who asks for equity must do 
equity, — a principle which was not adverted to in the case before us. 
In our view, neither the plaintiff nor the obligor had any equity. 
But if they had, still we cannot but think that the wife had at least 
an equal equity ; if so, why did the Court interfere ? Besides, in 
Sturgis t\ Champneys (a). Lady Champneys was allowed a provision, 
as against the insolvent assignee, out of the rents and profits of her 
estate, to which the insolvent her husband was presently intitled ; and 
though it was purely from an accident (h) that the assignee was com- 
pelled to come into equity, so in Hore v. Becher, the wife was claiming 
accruing payments, to which, as such, the husband never could have 
been intitled ; and the legal interest was outstanding, not by accident, 
as in Sturgis v. Champneys, but by virtue of the original contract ; 
yet as the case stands, the widow was not considered as intitled even 
to a provision. It is to be observed, however, that this point was not 
expressly made. 

Had the entire penalty of the bond been paid io the obligees, and by 
them to the husband, it might have been contended, on the authority 
of the case of Doswell v. Earle (c), that such an anticipatory payment 
was a good reduction into possession ; and in the case before us *the 
obligor might possibly have claimed to have so much of the 500Z. 
allowed to him as would cover any arrears, whether they accrued 
during his own life or that of his wife. In this way, assuming that 
the 500L was not exhausted by arrears accrued during the husband's 
life, the obligor, and through him the plaintiff, might have had some 
equity ; but even in this view, it is to be remarked that in the last-cited 
case the reversionary payment which the trustees were held to have 
paid to the husband in a proper exercise of their discretion might have 
come into possession in the lifetime of the husband ; here the payments, 
which would never accrue to the wife surviving, never could. With 
these observations we leave the case, and our reasons for not acqui- 
escing in it, to the consideration of the Profession, sincerely hoping, as 
is almost certain from the extensive legal acquirements of the distin- 
guished judge who decided the case, that the difficulties we have ad- 
vanced arise from some misapprehension on our parts^ the detection of 
which we have endeavoured to facilitate ; so that others may be pre- 
vented from being assailed by the same doubts and difficulties, if they 
should prove to be unfounded. 

(a) 5 My. & Cr. 102. (c) 12 Vcs. 474. 

(6) Bee 6 Uj. & Cr. 101. 



APPENDIX. 44 1 



No. IV. 

Of tlie Effect upon the Wife^s Title by Survivorship of her HusbaruTs 
Assignment, or the Laufs Transfer of her Choses in Action which 
are immediately recoverable^ or are in remainder or expectancy. 
By Mr. Roper, (a) 

1. In the first section of this chapter it was noticed that the husband 
might absolutely dispose of all such of his wife's personal estate over 
which the common law imparted to him the power ; and in the same 
section some particulars of property were described, of which good 
and effectual legal assignments might be made. 

Of such parts, therefore, of the wife's personal estate, whether in 
possession or remainder, to which her husband's assignment passes a 
complete legal title, the conveyance will bind his wife although she 
survive him; and it will make no difference whether the assignees 
claim under acts of parliament, or under assignments made by himself 
for or without value ; because by such dispositions the contingent 
interest of the wife is destroyed, and there is no equity for her against 
the legal consequences of these transactions, for cequitas sequitur legem. 

And in those instances, although the husband die before his as- 
signees recover the property assigned to them, they will, nevertheless 
for the reason last mentioned, have a right to recover and enjoy it 
against any claim of the widow in respect of her general title by sur- 
vivorship. (6) 

But when the property of the wife assigned by her husband is not 
of legal cognizance, but merely equitable, so that the assignment of it 
can only be enforced in a Court of Equity ; in such and the like cases 
the assignees of the husband-bankrupt, or his assignees claiming under 
the insolvent debtor's acts, or his assignees under a deed of trust to 
pay his debts (c), take the property subject to all the wife's equities 
upon it against her husband, {d) 

This proposition may be now considered as established by the 

(a) Vide guprd^ vol. I. p.* 83. This for payment of creditors, who execute 
discussion formed part of chap. 6 of Mr. it and release the debtor, it seems to 
Roper*s treatise (I Rop. H. & W. p. stand on the same footing as any other 
227—255). assignment for valuable consideration. 

(b) 2 Ves. Jun. 608—682. See 11 Vea. 620. 

(c) See Pryor v. Hill, 4 Bro. C. C. (d) 2 Dick. 491 ; 2 Madd. 16. 
139 ; 2 Atk. 422. If the trust deed be 



442 APPENDIX. 

solemn decision of Sir Willam Grant, M. R., in Mitford t;. Mitford (a) ; 
but previously to it, so strong was the opinion that the effect of 
assignments by the acts of law would bar the wife's right by survivor^ 
ship to her choses in action, whether immediately recoverable, or in 
reversion or expectancy, that the soundness of his Honour's judgment 
has not been generally considered as unimpeachable. The case of 
Mitford t;. Mitford was to the following effect : — 

A bequeathed 3000/. to trustees to place at interest, and to pay 
such interest to B for life or until she married ; and upon her death 
or marriage A gave the capital amongst C and D, and E the wife of 
M, equally. M, the husband of E, became a bankrupt, obtained his 
certificate and died, leaving his wife E surviving: B afterwards 
married The question, which was raised upon the bill of the sur- 
viving trustee, was whether, notwithstanding the bankruptcy, the 
wife was or was not intitled by right of survivorship to her share 
of the 3000t, which had been invested in 4 per cent consols ? And 
Sir William Grant, M. R,, after a review of all the cases, decided in 
favour of the wife, upon the principle, that this being a chose in action 
and not reduced into possession during the husband's life, survived 
to her ; and that an assignment under a commission of bankruptcy, 
although it passed her share, passed it to the assignees sub modoy viz. 
provided they received the share or its value during the marriage, 
and that the commission or assignment did not of itself necessarily 
intercept the wife's right of survivorship, {b) 

It is observable in this case, that the subject was solely within the 
jurisdiction of equity, and that the assignees had no remedy but by 
means of the Court of Chancery ; which Court, in analogy to the rule 
of law, decreed, that as neither the husband nor his assignees had, 
during his life, reduced the wife's share into possession by sale or 
otherwise, it necessarily survived to her upon his death. It is con- 
ceived, therefore, that there is no solid reason for disputing the pro- 
priety of the decision. 

With respect to Bosvill r. Bfander (c), one of the cases supposed 
to militate against the above authority, it is to be observed that Sir 
Joseph JekyU, M. B., after much discussion and great consideration, 
at first decided in favour of the wife, and afterwards against her; so 



(a) 9 Vcs. 87. (c) 1 P. W. 458. 

(h) S. P. Parker v. Dykes, 1 Eq. Ca. 
Ab. 54 : Gayner v, Wilkinson, 2 Dick. 
491 ; 1 Bro. C. C. 50, «. 



APPENDIX. 443 

that it contains decisions both ways, and shows the unsettled state of 
that Judge's mind upon this subject. The property was a mortgage 
in fee belonging to the wife, the title deeds were in the hands of the 
assignees, and the widow filed a bill for them, and to have the benefit 
of the mortgage. And the Master of the Bolls seems to have con- 
sidered it a material feature in the case that the suit was by and not 
against the widow (a circumstance at present of no consideration), as 
afterwards will appear. His Honour admitted the general principle, 
that the assignees claiming under the husband could not be in a better 
situation than the husband would have been: the necessary con- 
sequence of which one would have supposed to have been a decree, 
that as the husband's interest was subject to the wife's right of sur- 
vivorship, so it should be in the hands of his assignees ; and that since 
neither he nor they in his lifetime reduced the debt into possession, 
it necessarily survived to the wife, according to the first decision. 
Under such circumstances, it is conceived that this case cannot be 
fairly adduced to impeach the decision in Mitford v. Mitford. And 
as to the case of Miles t?. Williams (a), another of those cases, the only 
point decided was, that the husband's certificate under his bankruptcy, 
if well pleaded, would have been a bar to an action brought against 
him and his wife upon a bond given by her before marriage ; so that 
the present question was not there decided. And with respect to 
Pringle r. Hodgson (&), the last of those cases, Lord Rosslyn probably 
considered stock, which stood in the wife's name at the time of the 
marriage, as not being either in the nature of a chose in action, or an 
equitable interest, and that such impression produced the decree in 
that case against the wife in favour of the assignees. These two 
latter cases, therefore, do not appear to shake the solidity of the 
decision in Mitford v. Mitford, which was a determination upon the 
wife's reveraionary interest (c), and the property could not be reduced 
into possession in the ordinary acceptation of those terms. Sir 
William Grant's observation, that the wife's property being a chose 
in action and not reduced into possession during the husband's life, 
survived to his wife, must, it is presumed, be considered in an extensive 
sensC) importing that the assignees having neither reduced the property 



(a) 1 P. W. 249. (c) The interest was reversionary at 

(b) 3 Yes. 617. In this case the the time of the bankruptcy, but by the 
legal right to the stock had been changed marriage of Charlotte Mitford it became 
by a transfer from the wife's name to a present interest before the husband's 
trustees. death. 



444 APPENDIX. 

into their possession (which in this case they had not the opportanity 
of doing ), nor disposed of it for value in the lifetime of the husband ; 
since the wife^ therefore^ would have been intitled to it against the 
representatives of her husband^ she was equally so intitled against his 
assignees in bankruptcy. This interpretation of the expression of the 
Master of the Rolls is founded upon what has been before said ia 
regard to the husband's legal power over hi^ wife's personal estate^ 
where it appeared that his assignment of her real chattels^ whether in 
possession or remainder, intercepted at law her title by survivor- 
ship {a)y and that Courts of Equity, acting in analogy to the legal 
rule, inforced against his wife surviving him his agreement to mort- 
gage or assign them, {b) 

2. If, then, Courts of Equity pursue the legal analogy, it seems to 
follow, that, since the husband is enabled at law to release his wife's 
choses in action, in which he has an immediate interest (c), or an in- 
terest expectant upon an event which may by possibility happen during 
the marriage ((f), that class of his assignees before described will have 
a right to dispose of such choses in action for value, if the disposition 
be made during the coverture, and that it will defeat the wife's title 
by survivorship, (e) 

But it must be noticed that sales of reversionary interest are almost 
rendered impracticable, from an understanding that dispositions of 
them by private contract will in general be set aside for the least 
inadequacy of price, and that proof of the full value lies upon the 
purchaser, t. e. he must prove that fact, without the vendor being 
required to show the contrary. This, however, seems to be a mistake; 
for all, or the great majority of the cases, merely establish this 
doctrine in instances of expectant heirs, or of persons who may be 
considered to be adopted as such from their relation to the family. (/) 

The principle is public policy, in order to prevent de<!eption upon 
parents and ancestors, no parties to the transactions; and who, in 
Ignorance of them, are induced to leave their properties to be divided 
among usurers and common adventurers, instead of their heirs, whom 
they intended to be beneficial inheritors and successors to their 



(a) Chap. 5. sect. 2. " (d) 2 Roll. Rep. 134; Gilb. Eq. Rep. 

(b) Mr. Roper refers to vol. ii. of his 88 ; 1 Salk. 327. 

treatise, p. 177. (e) 2 P. W. 608 ; 9 Mod. 102. 

(c) Touchst. 333 ; 2 Roll. Abr. 410, (/) 9 Ves. 246 ; 16 Ves. 512 ; 17 
pi. 50. Ves. 20 ; 3 Ves. & Bea. 117. 



APPENDIX. 445 

fortunes. But this exception of expectant heirs out of ordinary cases 
appeal's to haye been opposed by some learned judges ; and I think 
that it will be founds upon examining the authorities prior to Peacock 
and Eyans^ after referred to, that, whateyer might haye been the dicta 
of judges, the cases were decided not upon inadequacy of yalue only, 
. but upon gross frauds and impositions, which ought, and would haye 
set aside any contracts, (a) In Curwin v. Miller (b) Lord King re- 
lieyed the heir. That case is yery shortly reported, and may haye 
omitted to state many particulars. In Chesterfield v, Janson(6), 
which was decided upon the subsequent confirmation of the original 
transaction, Burnet, J., said, it might be too rigid to say that an heir 
should not borrow upon an expectancy, as some persons are so 
niggardly and sparing to their children, that a poor heir might starye 
in the Desert with the land of Canaan in his yiew, if he could not 
relieye himself by borrowing upon an expectancy ; but as modem 
authorities (d) haye established that although an expectant heir may 
mortgage or sell his expectancy, yet if the full yalue be not obtained 
the transaction shall be yoid, the consequence of this rule is to 
exclude the fair and honest purchaser, who will not run such a risk, 
and to admit the usurer, and rapacious money-lender, who will 
incur it, but only up6n the most exorbitant terms ; so that the seyerity 
and uncertainty of the rule defeats its own end. Probably, the more 
efiectual principle would haye been, to haye established the contract 
of the heir in all cases where it would haye been binding upon other 
persons, and to haye relieyed him when and when only undue adyan- 
tage had been taken of his necessities, and a gross unconscionable 
bargain had been made with him. In Hill v. Cailloyel (e), which 
was the case of a son aged twenty-four, who gaye his bond for the 
payment of 520/. within six months after the death of his father, then 
of the age of seyenty. Lord Hardwicke observed that the circumstances 
were suspicious, but intimated that he could not relieye against the 
transaction without proof of imposition. Great inconyenience in prac- 
tice, and much litigation, haye arisen from the law being established 
as aboye ; and it is considered impossible to recommend a purchaser 

(a) Nott V. Hill, and Bill v. Price, 1 (c) 1 Atk. 301. 

Vem. 167. 467 : Barney v. Tyson, 2 (d) Evans v, Cbesshire, Belt's Supp. 

Yentr. S59 : Ardglasse v, Muscbamp, 1 to Yes. Sen. 300 ; Peacock and Evans, 

Yern. 237 : Lamplugh c. Smith, 2 Yern. 16 Yes. 512 : Gowland v. De Faria, 17 

77 ; Berny v, Pitt, 2 Yern. 14 : and Yes. Jun. 20 : Bowes v. Heapes, 3 Yes. 

Twisleton v. Griffith, 1 P. W. 310. & Bea. 117. 

(b) 3 P. W. 292, note. (e) I Yes. Sen. 122. 



446 APPENDIX. 

to accept a title that depends upon so uncertain a calculation as the price 
being the full value of the reversion, which is left to the opinion of 
a judge in each particular case, and upon which it may frequently 
happen that any two or more persons may disagree; so that at 
present Burnet's observation is realised, that the expectant heir must 
either starve in the sight of Canaan^ or fall into the hands of rapacious 
money-lenders, except the Court should relax the rule in the instances 
after mentioned of sales by public auction, although not so productive 
as bond fide sales by private contract. The inconvenience felt in this 
instance, from the uncertainty of the law as applicable to each case, 
shows the propriety of all the rules of hiw being made clear, and 
followed in all cases to which they apply, until an alteration be made 
with the concurrence of all or the majority of the proper Judges, 
Experience has proved the truth of the proposition, that miserd servitua 
est ubi lex est vaga ; and it has been ascertained by the same unerring 
test that there is less inconvenience in acting upon an unsatisfactory 
principle which has acquired the force of law by decisions, than when 
the private opinion or views of a single judge have induced him to 
set at nought the determinations of his predecessors and the opinions 
of his cotemporaries, and to decide against them. 

It is presumed that the cases do not extend to instances where the 
persons intitled to remainders or reversions are not the expectant heirs, 
or from their relation to the family are not to be considered in the 
same character. 

Thus, in the case of Gwynne v, Heaton (a), Lord Thurlow said, 
that ^^ a remainder-man might sell or give away his remainder, and 
the Court will not take it away from the purchaser or donee ; that an 
inadequate consideration is not alone sufficient to vitiate the contract, 
although in order to do so it must be inadequate. Where it is sold 
for a sum grossly inadequate, the Court has never sufTered it to stand." 

In Batty v. Lloyd (i), the defendant agreed with the plaintiff, 
intitled to an estate after the death of .two old women, to give to her 
350/., in consideration of being p^d 700Z, at the deaths of these two 
old women ; and tlie plaintiff was to secure the 700il upon a mortgage 
of her reversionary estate. The women died two years afterwards, 
and the suit was instituted to be relieved against the bargain ; but the 
Court refused to interfere, observing that nothing ill appeared in the 
transaction. 

(a) 1 Bro. C. C. 6. (b) I Vem. 141. 



APPENDIX. 447 

And in Cole v. Gibbons (a), Lord Talbot took the distinction 
between young heirs and other persons. 

The conclusion to be drawn from the old and new cases seems to 
be this : — that the heir may sell or incumber.his reversionary or ex- 
pectant property by private contract, if the sale be for the full value, 
or if the incumbrance be made upon fair terms. 

And probably it may be considered, that a stranger may sell his 
remainder or reversion for the best price which he can get, although 
it may be at an undervalue, if there be no fraud or imposition, I 
have used the word " probably," in consequence of the general im- 
pression that the reversionary interests of no persons can be sold by 
private contract, except at their utmost value. There are indeed 
numerous dicta in support of that impression, but I find no case dis* 
tinctly determined to that effect. The instance of an expectant heir 
was the first exception to a person's power of free disposition of his 
property upon the principle before stated That principle was next 
extended to the more immediate members of the family, under the 
supposition, as it is conceived, of the reversionary interest being in- 
tended as a portion or provision, and therefore within the principle of 
the expectant heir. Thus far the cases have advanced, and, as I 
believe, no farther. "When, therefore, the inconvenience of the ex- 
ception which has been established is considered, and its insu£Bciency 
to answer the end of its formation, and the general sentiment in dis- 
favour of, it may not be considered as too speculative or rash to suppose 
that when the question comes fairly before the Court upon the validity 
of the sale of a reversionary interest belonging to a stranger, the con- 
tract will not be vitiated from mere inadequacy of consideration alone, 
and which would not avoid it in general instances. It appears before 
that there is no want of authority for such a determination: the 
dictum of Lord Thurlow and the decrees of Lord Hardwicke and 
North, Lord Keeper, may be considered a sufficient foundation upon 
which to build such a decree. 

The cases have not proceeded to the length of avoiding sales by 
expectant heirs of their reversionary interests by public auction* 
Perhaps the money arising from such sales, and upon fair competition, 
would be considered the value of the property, and bind the heir ; 
since it might reasonably be presumed in such transactions, and in 
the absence of proof to the contrary, that there was no imposition, no 

(a) 3 P. W. 294. 



448 



APPENDIX. 



undue advantage taken of his neoessities, and therefore that sueh sales 
did not fall within the modern authorities before referred to. 

Considering that a married woman is under the special protection 
of a Court of Equity in respect of her equitable property ; in sales, 
therefore, of her reversionary interests by the husband or his assignees 
in bankruptcy, &c., it may be thought the most eligible method to do 
so by public auction, (a) (b) 



(a) Since writing the above obser- 
Tations I have been favoured with the 
manuscript of a case preparing for the 
press by Mr. Maddock, in which a sale 
by public auction of a reversionary in- 
terest by an expectant heir was esta- 
blished by the present yice-Chancellor. 
The case was Shelley v. Nash.* The 
plaintiff was intitled to the reversion of 
8000/. sterling upon the death of the 
survivor of his father and grandfather ; 
the former of the age of sixty, and the 
latter of eighty or near ninety, the 
plaintiff being twenty-two. The plain- 
tiff advertised his reversion to be sold 
by public auction in March, 1814, at 
which time the sale took place, and the 
defendants were declared the highest 
bidders at the sum of 2593/. lOs. The 
grandfather died in January, 1815. 
The object of the bill was, that the heir 
should be relieved against the sale. 
Morgan, the actuary, deposed that at 
the time of the sale the reversion was 
worth S6M^ and that 5860/. only ought 
to have been secured to be paid upon 
the happening of the contingency, in 
consideration of the sum of 2593/. lOs, 
Frend, another actuary, was of opinion 
that 36532. was the fair price of the 
contingency, but said that in and since 
July, 1814, a great change had taken 
place in the value of money, and that 
he considered 2561/. lOs. in and since 
that month to be the value of the re- 
version of 8000/. ; and that had he been 
asked in the above month whatmight be 
expected for the advance of 2593/. 10«., 
he should have replied 8099/.; and 
he observed, that in contracts of the 



like nature, the contingency of a lawstdt 
must be taken into consideration. His 
Honour decided in favour of the bargain, 
and dismissed the bill wUh costs^ ob- 
serving, that the principle of the rule 
laid down by the modern cases could 
not be applied to sales of reversions by 
auction ; that sale by auction was evi' 
dence of the market price; and prc' 
tended sale by auction to cover private 
bargains would operate nothing. — Note 
hy Mr, Roper. 

(b) On the subject of transactions 
relating to reversionary interests, see 
Davis V. Duke of Marlborough, 2 Swan. 
108, and Mr. Swanston*s note, p. 139. 

Notwithstanding the case of Shelley 
V. Nash, sales by auction of reversionary 
interests will not in all cases be sup- 
ported. In Fox V. Wright, 6 Madd. 
Ill, affirmed by the Lord Chancellor 
on appeal, the Court interfered by in- 
junction against a post obit bond, 
which had been sold by auction. — Note 
hy Mr. Jacob, 

[To the above cases Mr. Jacob adds 
those of Byle v. Swindells, M*Cleland*s 
Exch. R. 519, and Headen v. Rosher, 
1 M'Cleland & You. 89. In the latter 
case the L. C. B. said that he could not 
bring himself to adopt the principle laid 
down in Gowland 9. De Faria, 17 Vea. 
27 ; and he held that a private sale of a 
reversionary interest was not to be set 
aside on the ground that the price paid 
was less than the full value as calculated 
by an actuary. To these cases may be 
added those of Wardle v. Carter, 7 Sim. 
490: E. Portmore v. Taylor, 4 Sim. 
182 : Addis v. Campbell, 4 Beav. 401 



« 28th May, 1818. Smce reported, 3 Madd. 232. 



APPENDIX. 449 

If^ thcD^ such assignees are able, by their assignment for value^ to 
bar the wife's title by survivorship to her own reversionary choses in 
action, for the reasons before given, it follows that — 

3. An assignee for the husband, for a valuable consideration of the 
wife's choses in action, whether they be immediately recoverable, or 
be in remainder, or expectant upon an event which may possibly 
happen during the marriage, will also be intitled to hold them against 
the wife's claim by survivorship. 

The reader must consider the power of the husband, to assign for 
value his wife's reversionary choses in action, as a point not yet finally 
settled. The opinions of most of the modem equity judges have been 
doubtful upon the subject; but I am not aware of any judicial opinion 
or decision, that the assignee could not retidn his purchase against the 
wife's title by survivorship, except the determination of the present 
Master of the Bolls, in the case after stated ; and a dictum of Sir 
William Grant, M. H., that a husband can dispose of his wife's pro- 
perty in expectancy against every one but his wife surviving him. (a) 
On the contrary side of the question stand the names of Lords Hard- 
wicke. King, and Alvanley ; as will appear from the remarks which 
will be made upon the decision of Sir Thomas Plumer, in Homsby v. 
Lee. {b) 

In that case, the wife was intitled to certain trust-stock upon the 
death of her mother ; and she and her husband assigned it to secure 
an annuity granted by him. The husband took the benefit of the in- 
solvent debtors' acts, and a general assignment of his property was 
made. The mother then died, and afterwards the husband, without 
any act having been done by him or his assignees during the mother's 
life (c) to reduce the fund into possession. The question was, be- 
tween the wife, the grantee of the annuity ^ and the assignee under the 
insolvent debtors acts: and Sir Thomas Plumer decreed the trust 
fund to the wife against the annuitant, because the assignment 
(although made for value to a particular assignee) did not bind the 

King V. Hamlet, 4 Sim. 223 ; S. C. 2 '^. C. 100 ; 2 Eq. R. 62 : Davies r. 

M. & K. 456 ; 9 Bligh, N. R. 575 ; 3 Cooper, 5 M. & C. 270 : and see 1 Sug. 

CI. & F. 218 : Potts r. Curtis, Younge V. & P. 444, 10th ed.] 

Eq. Ex. 556 : Hinckesman r. Smith, 3 (a) 1 Vea. & Bea. 405. 

Russ. 433 : Newton r. Hunt, 5 Sim. (ft) 2 Madd. 16. 

511 : Bernal v. M. of Donegal, 1 Bligh, (c) See 2 Dick. 491. 

N. S. 594 : Edwards v. Bown, 2 Coll. 

VOL. 11. G G 



450 APPENDIX. 

wife's right of survivorship. And he decided against the assignee 
under the insolvent debtors acts^ because the assignment had no 
greater effect than that in bankruptcy, which has been before con- 
sidered. 

Sir Thomas Plumer's decree against the annuitant is, I believe, the 
first decision that the reversionary interests of the wife in choses in 
action cannot be assigned by her husband, even for value, so as to bar 
her title by survivorship. This judgment, then, purporting to settle 
a new point of equity, the reader will reasonably expect that it should 
not be passed over in silence, especially when so much doubt had pre- 
viously been entertained upon the subject. His Honour^s decision 
against the annuitant was made upon the principle, that a particular 
assignee of the husband cannot be in a better situation than his as- 
signees under a general assignment in bankruptcy. But, with aU due 
respect to so high an authority, it is conceived, that it will be difficult 
to apply that principle to the two cases ; for assignees in bankruptcy 
are merely placed in the situation of the husband, by the assignment, 
under the directions of the statutes, with his rights and powers ; but 
his assignee for a valuable consideration claims under the execution of 
his legal power ; the latter assignee, therefore, is not in the same situ- 
ation as general assignees in bankruptcy, but His case resembles that of 
the assignee for value of such general assignees : hence, if the hus- 
band's assignee for value have a good title in equity against the wife, 
it follows that the assignee claiming under the husband's assignees in 
bankruptcy must have a similar title. The simple question appears 
to be. Has the husband a power to assign, for a valuable consider- 
ation, his wife's choses in action, so as to bind her, surviving him ? 
In attempting to answer this question, it is necessary to consider the 
husband's power at the common law over this species of property, and 
his power over it in equity. 

With respect to his power at law. It was asked, in Homsby v, Lee, 
if a deed assigning a reversionary interest was a reduction of it into 
possession ? The answer must be, surely not : it is not an actual re- 
ceipt of the thing itself, although it certainly is of its value. 

But there are other methods by law besides actual reduction into 
possession, by which the husband is allowed to exercise his legal right 
over his wife's choses in action, and to defeat her title by survivorship, 
viz. the disposition of her interest in such of them as are legally trans- 
ferable by assignmeniy without any distinction whether the interest be 



APPENDIX. 451 

Immediate or in remainder (a) ; and the passing or extinguishment of 
her interest in such of them as are not assignable^ by his release. 
The husband's power to assign at law his wife's terms for years^ 
whether in possession or in remainder^ and his power to do the 
same by contract in equity, in analogy to his legal right, has been 
before shown (£) ; but his power of releasing his wife's choses in action, 
whether her interest in them be immediate or in expectancy, has not 
been regularly detailed. 

The interest acquired by the husband, upon his marriage, in the 
debts due to his wife, enables him to release them so as to bind 
her. (c) 

So also he may release all rights accruing to her during the 
marriage, {d) 

That the husband may release his wife's legacy, although she die 
before the arrival of the time of payment, appears from an anonymous 
case in BoUe's Reports, {e) It seems that the husband was the sur-> 
viyor ; but the observation of the Court may be considered as a ge- 
neral one, and to be equally applicable if she had survived him. The 
Court said, ** The husband has an interest in the legacy before the 
time of payment accrues, which interest it is clear that he might have 
released previously to the period of the money becoming payable." 
A similar interest he has in his wife's choses in action, in remainder 
or expectancy, which may possibly fall in during the marriage ; and 
there appears to be no solid reason why they also should not be within 
his power of releasing. Accordingly, in Gage w. Acton (/), Holt, 
C. J., expressed himself to the following effect : — ^^ that when the 
wife has any right or duty which by possibility may happen to accrue 
during the marriage, the husband may by release discharge it ; but 
where she has a right or duty which by no possibility can accrue to 
her during the coverture, there the husband cannot release it" 

The exception to the husband's power proves the existence of it 
at law in the other instances ; ' and the following are examples of the 
exception : — 

If a lease were made to the husband and wife for their lives, and 
to the executors of the survivors^ the husband could not release ct 



(a) Mr. Roper refers to chap. 5, sec. 2, (d) Toucfast. 333. 

pi. 3. of his treatise. (e) 2 Roll. 134. and see 10 Rep. 51 &. 

(ft) See last reference, (/) 1 Salk. 327 ; 1 Com. Rep. 67 \ 1 

(c) 2 Roll. Abr. 410. Ld. Raym. 515, S. C. 

GG 2 



452 APPENDIX. 

dispose of the remainder^ against the title of his wife surviving him, 
because it could not possibly come into possession during the mar- 
riage^ and the wife's interest or chance was a mere possibility, (a) 
Again^ 

Suppose a person undertook to pay or bequeath to B 100/. if B 
survived C, her husband, or if a bond had been given to the wife dum 
sola to the like effect^ the release or assignment of C^ or his marriage 
with B, would not affect B's right to the money upon surviving her 
husband, (b) But if the wife had been possessed or intitled to the 
residue of a term for years» upon the determination of an interest for 
years carved out of it ; or if the 1007. had been payable to the wife 
upon an event which might have happened during the marriage^ her 
husband might have assigned and released them at law. 

Such being the husband's power over his wife's choses in action^ in 
remainder or expectancy, as given to him by the law, the next in- 
quiry is, will Courts of Equity pursue the hffal analogy in relation to 
equitable assignments by lum of her reversionary choses in action, as 
we have seen that they have done in instances of his agreements to 
dispose of or pledge them when the wife's interest was immediate or 
present ?(c) This can only be determined, upon consideration of 
what a Court of Equity has done, and the opinions of its Judges ; but 
before I proceed, I shall submit this remark to the reader, whether 
there be any reason suggesting itself to his. mind, why the Court 
should act in analogy to the law, where the husband's contract is to 
dispose of his wife's choses in action when her interest is immediate ; 
and then to stop short and not pursue the analogy, and hold the same 
language where the agreement is to dispose of her reversionary 
interest which may fall into possession during the coverture. We 
shall first begin with the opinions which have been expressed upon 
the subject. 

In the Duke of Chandos v. Talbot {d), Lord King expressed himself 

thus : '* It has been determined that the possibility of a term (viz. 

where a term was devised to A for life, remainder to B for the residue 

of it) might be assigned even by the husband alone, as appears from 

•the case of Theobald v. Duffoy(«); a decree by Lord Macclesfield, 

(d) 2 Roll. Abr. 48 ; 10 Rep. 51 ; (c) See supra, 
Touchst. 344. (d) 2 P. W. 608. 

(b) Belcher v. Hudson, Cro. Jac. 222 ; (e) 9 Mod. 102. 
and Gage v. Acton, 1 Salk. 326 ; Hob. 
216; Cro. Jac. 571. 



APPENDIX* 453 

'which was aflterwards confirmed by the then present Chancellor, and 
finally by the House of Lords. But were it (a legacy payable to the 
wife at her age of twenty-five) not in strictness to operate by way 
of assignment, yet it would be good as an agreement; especially 
when made for a valuable consideration." 

In Grey v. Kentish (a). Lord Hardwicke exf>re8sed his opinion as 
follows : — "A husband cannot assign in law a possibility of his wife ; 
but this Court will, notwithstanding, support such an assignment for 
a valuable consideration." And in a subsequent case of Hawkins v. 
Obyn (i), his Lordship gave a similar opinion, in relation to the hus- 
band's power to assign the possibility of his wife for value. 

Lord Alvanley's opinion must have been the same, in regard to the 
husband's power over his wife's reversionary interest, when he pro- 
nounced his decrees in Hewitt ». Crowcher, and Greg v, Crowcher (c); 
for unless the husband had the power of assigning it for value, the 
wife's examination and consent in Court to the transaction would 
doubtless not have been received. 

With respect to decisions upon the subject, I have found none pre* 
viously to the modern case of Hornsby t;. Lee, except one, which 
seems to show the habit or practice of the Court in these instances so 
long ago as in the beginning of the reign of George the First, and that 
it was founded in analogy to the husband's power at law to extinguish 
or release his wife's reversionary choses in action. 

The case alluded to is Atkins w. Dawbury (d), in which the wife 
was intitled to a legacy, payable out of lands, upon the death of a 
tenant for life. Her husband, during the lifetime of the tenant for 
life, assigned the legacy to trustees for the benefit of his children* 
After his death the life estate determined, and the legacy became 
payable ; and upon the bill of the children for the money, it was 
decreed, that since the husband, who had a power to extinguish or 
release the legacy, had made a good assignment of it in equity 
(although as a chose in action it was not assignable at law), it was 
actually recovered, i. e. it was actually recovered against the wife's 
title by survivorship. 

The peculiarity of the above case is, that the assignment may be 
Considered voluntary (e) ; a consideration upon which it has been 
before shown a Court of Equity will not interfere in those instance 

(a) 1 Atk. 280, ed. by Sanders. (d) Gilb. Eq. Rep. 88. 

{b) 2 Atk. 551. (e) See Becket v, Becket, 1 Dick. 340 

(c) See 12 Ves. 175. 

oa 8 



454 APPENDIX. 

against the title of the wife^ but the principle of the decision shows 
clearly the husband's power in equity^ in analogy to law, to bind his 
wife's right of survivorship to her reversionary interests by an equitable 
assignment for a valuable consideration. Probably, the following 
proposition may be considered as warranted from what has been said, 
— that whenever the nature of the wife's interest is such as the law 
allows the husband to release it, a Court of Equity will permit him to 
assign it for value. 

The cases which have been adduced to show that the husband 
cannot bind his wife's reversionary interests by a particular assign- 
ment for a valuable consideration, are either upon questions between 
her and general assignees under her husband's bankruptcy ; or, in 
instances where there were no decisions upon the point, and the Court 
merely declined to act upon his wife's consent so as to prejudice the 
question of her title by survivorship before the period arrived when 
it would arise, viz. upon her husband's death, as will appear from the 
cases after stated. 

In Grey v. Kentish (a), the wife was intitled to a share of South 
Sea annuities subject to her mother's life interest, and to the contin* 
gency of her (the wife) being living at her mother's deatL The 
husband became a bankrupt, and died before the mother. His wife 
petitioned, as surviving him and her mother, to have the share trans- 
ferred to her ; and Lord Hardwicke so ordered against the assignees 
under the bankruptcy ; and upon the principle, as it would seem, 
before stated, in regard to such class of assignees, (b) No particular 
objection was taken to their claims, on the ground that this was a 
contingent reversionary interest ; nevertheless his Lordship declared, 
as it was before observed, that although the husband could not at law 
assign a possibility belonging to his wife, yet that a Court of Equity 
would support such an assignment for a valuable consideration. 

Gayner v. Wilkinson (c), before Lord Bathurst, was another case 
between the surviving wife and the assignees of her husband. The 
wife was intitled to a share in a sum of money expectant upon the 
death of A, if the wife were then living. The husband became a 
bankrupt, and died, after surviving A, leaving his wife the survivor. 
The share was decreed to belong to the wife by his Lordship dis- 
missing the bill against the assignees ; but the decree was made, as it 
would seem, upon the principle^ that no act had been done in the 

(a) 1 Atk. 280, ed. by Sanders. (c) 2 Dick. 491 } 1 Bro. C. G. 50. S. C. 

(6) Mr. Roper refers to vol. i. p. 227» in notes/ 
of his treatise. 



APPENDIX. 



455 



husband's lifetime to reduce the fund into possession, as he or his 
assignees had power to do after the death of A, and not upon the 
inability of the husband or his assignees to assign the same for value 
to bind the wife's right by survivorship. 

In considering the unsettled question, when the wife will be per- 
mitted to consent in Court as to the disposal of her reversionary 
personal property, those cases which relate to personal estate settled 
to her separate use and appointment must for the present be excluded, 
since the principles applicable to them do not apply to this inquiry. — 
Suppose, then, a married woman to be intitled to personal property, 
or to the interest of it, absolutely or for life, after the death of A ; 
can she, during her marriage with B, consent to the disposition by 
her husband of her interest against her own title in the event of 
surviving him ? In the most modem cases, her power to do so has 
been doubted. In other cases her consent has been taken, and no 
doubt entertained of her having that power ; but some of them it is 
conceived have gone farther than any principle can warrant 

It is presumed that the principle applicable to correct determina- 
tions upon this subject is this — that when property is so given to the 
wife, either in remainder or contingency, as that the husband may 
release it at law (a), as in the instance above supposed ; if he assign it 
for value, the assignment will bind the wife in equity ; so that her 
consent, by way of confirmation and to waive her title to a settlement, 
ought upon such principle to be received and recorded. But that 
when the wife's consent is offered to pass her reversionary interest in 
analogy to a fine at common law, in favour of the husband or his 
assignee, without a valuable consideration, the Court must decline to 
receive it, because no analogy between the two acts exists (&), they 
differing both in forms and principles ; and because the property is not 
assignable at law, and there is no consideration to induce a Court of 
Equity to act or interfere, (c) 

It is probably to the want of attention to this distinction that the. 
discordant adjudications to be found in the cases may be attributed* 

The above principle will support Lord Alvanley's decree in Hewitt 
w. Crowc^er (c?), in the year 1800, which states that the wife being 
present in Court and examined, and desiring that the contract should 

(a) 2 Roll. Rep. 134; et vide ante, p. Broiulbent, 2 Jac. k Walk. 456 : Hoxr* 
238. [p. 449 of this vol.] ard e. Daniiani, ibid. 458 n. : Breton o. 

(b) 10 Vc8. 587 ; 8 Ves. 174. Lord Clifden, 1 Sim. & Stu. 363» 

(c) On this subject see Ritchie v. (d) Stated 12 Ves. Jun. 175. 

G G 4 



456 APPENDIX. 

be carried into execution^ it was decreed accordingly. But such 
principle will not support the case of Butler v. Duncombe (a), in 
which the Court ordered upon the examination of the wife a moiety of 
her portion, payable at her mother's death, to be sold or disposed of 
at her husband's pleasure. 

With the distinction above taken agrees the very modem case of 
Pickard v. Roberts, (b) A testator gave personal estate to trustees in 
trust to pay the interest to his wife for life, and after her death to 
make equal division of the fund among his children who should attain 
the ages of twenty-one years. He at his death left three children 
and his wife surviving him. The widow made a gift of her life 
interest to A, the husband of B, one of the children, and they three 
petitioned that the reversionary interest of B, who had attained 
twenty-one, should be paid to her husband A, B and the widow also 
consenting. But the Vice-Chancellor refused to make the order. 

It is observable that in the last case the consent was offered to pass 
the wife's reversionary interest to her husband^ in the absence of any 
power enabling her to dispose of such an interest, and whilst under 
the disability of coverture, without any valuable consideration, and, 
as it seems, upon the supposed analogy between her examination and 
consent in equity and a fine at law, an analogy which his Honour 
observed was always disclaimed in a Court of Equity. 

The case which followed Hewitt v. Crowcher, before referred to, 
was WooUands v. Crowcher. (c) There the wife was intitled, 
amongst other property, to interest upon a share of 12257. stock for 
her life, expectant upon the death of A. The husband and wife 
agreed to sell this reversionary interest for 180/., but the purchaser 
required the wife's consent to be expressed in Court to the transac- 
tion ; in order to obtain which the husband and wife filed a bill for a 
performance of the contract. But Sir William Grant would only 
take the wife's consent de bene esse^ so as not to preclude the question 
as to her title by survivorship, if it should arise in that event hap- 
pening. Upon that occasion his Honour said, that the effect of an 
assignment upon reversionary property had been doubted, and re- 
ferred to the argument of Mr. Maddocks, in Saddington v. Kins- 
man {d)y as to the Court not anticipating future property ; but he 
admitted that other cases had said that the Court would do so ; and 



(a) 2 Vem. 762. (c) 12 Ves. Jun. 174. 

{h) 3 Mad. 384. (d) 1 Bro. C. C. 44. 



APPENDIX. 457 

that it had so done in Hewitt v. Crowcher, and Greg v. Crowcher, 
before Lord Alvanley^ and mentioned in the argument. 

It will occur to the reader, that in the last case the wife's interest 
was such as her husband might have released (a); for it was an 
interest which might have fallen in during the marriage^ viz. by A's 
death. It seems, therefore, singular that when the husband, instead 
of exercising his legal power, assigns the property for value, a Court 
of Equity should interpose obstacles in not permitting the wife to 
confirm the transaction by examination and absolute consent. Indeed 
the present disposition of the Court is not to take the absolute consent 
of the wife to the passing of her reversionary interest to a purchaser 
from her husband, but de bene esse only ; and for the reason assigned 
by Sir William Grsmt in the above case of Woollands v. Crowcher, 
viz. because of the doubt now entertained as to the validity of the 
husband's assignment for valite of his wife's reversionary property 
against her title by survivorship ; and therefore not to prejudice her 
right if she were the survivor, and the Court should decide the 
question in her favour. 

It is presumed, however, for the reasons before mentioned, that 
there is no solid distinction between reversionary interests of the wife 
and her other choses in action, in regard to the power of the husband 
to dispose of them in equity so as to intercept her title by survivor- 
ship, when they are bond fide assigned for value, and are such as may 
possibly accrue during the marriage, and are not settled before it as a 
provision for the wife in the event of her surviving him. 

To pursue the analogy between law and equity. It appears be- 
fore (J), and it will be shown afterwards, under the consideration of 
the effects of marriage upon the prior acts and agreements of husband 
and wife, that he at law can neither dispose of nor release such part 
of her personal property as cannot possibly accrue during the coverture. 
In conformity with this rule, it is determined in equity that where a 
woman stipulates, in the event of surviving her husband, that her pro- 
perty shall become her own, reserving no power of disposition over it 
during the marriage ; neither her husband can dispose of it by sale or 
otherwise, nor can she do so during his life, either by deed, will, 
consent, or charge. And the principle is the same when personal pro- 
perty is so given or left to her. 

In the two cases of Richards r. Chambers, and Seaman v, Duill (c), 

(a) Ante, p. 238. [p. 449 of this vol.] ; Qt) Page 241 [p. 451 of this toI.] 
and 1 Salk. 115. (c) 10 Ves. Jun. 580. 



458 APPENDIX. 

bj the first of which property was settled in trust for the separate use 
of the wife for life> and if she survived her husband, then to be abso* 
lutely hers ; but if she died before him, then as she by deed or will 
should appoint, and in default of appointment to her executors and 
administrators ; and by the second of which cases, the property was 
settled to the husband for life, and if he survived to him absolutely, 
but if she survived, then to her absolutely : the question was, whether 
the contingent interests which the wife, whilst sui jurtSy had secured 
to herself in the event of surviving her husband^ could by her consent^ 
through the interposition of the Court, be given up by her to her 
husband while she was in a state of coverture ? And Sir William 
Grant, then Master of the Bolls, determined in the negative ; and 
said, that the interests were of such a nature, that if they had been 
created by another person the husband would have had no power 
over them, for he could not affect her interest which could not take 
effect in possession during his life. 

The same point again occurred before that judge in Lee r. 
Muggeridge (a), with the additional circumstance, that the wife 
entered into a bond to pay a considerable sum of money by her heirs, 
&c., within six months after her death. After that event happened, 
the bond creditor filed a bill to subject her separate estate to the pay- 
ment of the debt ; but the Court held, that as the wife during the 
marriage could not, for the reasons before mentioned, dispose of her 
contingent interest by direct appointment, a fortiori, she could not 
do so by her bond. It appeared that she, after the decease of her 
husband, in answer to a letter requiring payment of arrears of interest, 
stated, that she was unable to discharge the bond, but that it would 
be settled by her executors. As to this, his Honour observed, that 
if she had done any thing that set up the bond, or if there was a new 
contract, her assets would be liable ; but that previously the plidntiff 
must establish his right at law. 

The principle upon which the lost two cases were decided, will 
support the determination of Eyre, C. B., in Fraser v. Baillie. {b) 
In that case the husband vested money in trustees to pay the interest 
to himself for life, and upon his death, in trust, as to part of the 
capital, to pay the interest to his wife for life ; and after the survivor's 

(a) 1 Ves. & Bea. 118: see also (6) 1 BrowD, C. C* 518. 
O'Keate r. Calthorpe, stated 8 Ves. Jun. 
177 : Nevison v. Longden, in the Court 
of Exchequer, in June, 1800. 



APPENDIX, 459 

deaths to divide that part among children, &c., subject to the wife's 
appointment ; and in default of appointment, among them equally, 
and if no children, then for the husband. The husband and wife, by 
deed of appointment of part of the money in favour of one of their 
sons, stated, that they meant to part with the interest of it during 
their lives. The son, by his bill, prayed a transfer, and that the 
wife might be examined in court, to consent to the passing of her 
interest for life ; but the Chief Baron refused to interfere. 

Whatever might be his Lordship's reasons for thus withholding his 
interference, it is conceived that he decided correctly ; for in this 
case the wife's life interest was a remainder or reversionary interest, 
which could not possibly fall into possession during the marriage, 
and was intended as a provision for her in the event of her surviving 
her husband ; so that the Court could not, with any consistency of 
principle, authorise the wife during the marriage (although she con- 
sented) to part with such provision : this case, therefore, is governed 
by the same reasoning which produced the decrees in the two cases 
last stated. 

The power of appointment given to the wife in the above cases of 
Bichards v. Chambers, and Lee v. Muggeridge, merely applies to the 
disposition of the fund upon the contingency of her dying before her 
husband ; it cannot therefore affect the interest which she has in the 
same property in the event of her surviving him : so that if she had 
executed her power, it could only have been effectual upon the con- 
tingency of her death during her husband's life; and if, on the contrary, 
she were the survivor, then she would be intitled to the whole fund, 
notwithstanding the appointment. Hence it appears, that although a 
wife in such a case appoint under the power, the Court cannot act 
upon it, through the medium of her consent to give up immediately 
the fund ; which would have the effect of defeating her other con- 
tingent interest, because the power does not extend to such latter 
interest ; and since she does not take it to her separate use, and is 
unable to deal with it as Vkfeme sole, and as it is given or reserved to 
her as a provision upon her surviving her husband, and cannot be re- 
duced into possession during the marriage, and therefore not at law 
disposable by the husband, the Court of Chancery will not, and it 
in fact has no jurisdiction to anticipate the application of the fund, 
upon the consent of the wife for the purpose. The cases last referred 
to prove this. 



460 APPENDIX. 

There are cases^ however, prior to those, which are at variance 
with them, but which upon principle appear to be of no authority. 

The leading opposition case is M^Carmick v. Buller(a): there, 
upon the marriage, 4000i (the wife's fortune, with 5000L to be 
secured upon the husband's real estate) were settled upon trust to pay 
the interest of the whole to the husband for life, with remainder to 
his wife for life, and after the death of the survivor to pay the 
-^principal as such survivor should appoint. The wife agreed to give 
up her interest to her husband; and they by deed poll appointed 
the funds immediately and absolutely to the husband. A bill against 
the trustees and wife was filed by the husband to carry the deed into 
effect ; and the wife, by her answer, submitted to the prayer of the 
bill. After she had been examined in Court, it was decreed accor- 
dingly. 

This case appears to be in contradiction to the principles before 
stated, and to the authorities above set forth and referred to. It 
cannot escape observation, that in this instance the wife stipulated for 
a provision for herself for life, in the event of surviving her husband, 
with a power also in the same event of disposing of the capital ; which 
was in effect reserving to herself her own property if she survived 
him. She in fact took the best method to place her fortune out of 
her own reach during the marriage, with a view of preserving it for 
herself both at law and in equity, if she happened to be the survivor. 
It was surely, then, a great stretch of power in the Court of Chancery 
to leap over all these bars and fences, and by a single breath of the 
wife, under the influence and dijsability of coverture, to order the funds 
to be paid to the husband, in opposition also to his own express 
stipulation upon the marriage. The authority of this case has been 
questioned, as it might be expected, by modem judges {b) ; yet it 
seems to have had effect in producing similar decrees in some subse-^ 
quent cases (c) : but they must fall with their principal, and all of 
them appear to have been overruled by the contrary decisipns before 
stated and referred to. 

The case of Frederick v. Hartwell (cQ, decided by Lord Kenyon 
previously to M'Carmick v. Buller, differs from it in these important 

(a) lCox,Rep»367; SVes* Jun. 174. (c) Ellis v. Atkinson, 8 Bro. C. C. 

(b) See the cases of Nevison r. Long- 565 : and Guise r. Small, 1 Anstr. 277. 
den, in the Exchequer, In the year 1800: (d) 1 Cox, Rep. 193. 

Sperling v. llochfort, 8 Ves. 174 : Rich- 
ards ». Chambers, 10 Ves. 583—585. 



APPENDIX. 461 

particulars ; that the property was not the subject of settlement upon 
the marriage^ and the power to appoint was not postponed till after 
the marriage must have determined, but it might have been executed 
Dj immediate disposition of the fund, at anj time during the coverture. 
The subject was a bequest hj a stranger to the wife's separate use 
for life^ and after her death, in trust as to the capital, as the wife 
should by deed or will appoint, and in default of appointment, for 
her absolutely ; she, therefore, might defeat her ultimate interest by 
exercising her power of appointment. She did so, by appointing by 
deed the fund to her husband. They filed a bill for a transfer to him, 
and upon her examination and consent (a) in Court, it was ordered 
accordingly. 

. In this case it appears that the whole property was under the 
wife's dominion during the marriage. It did not depend, or was not 
intended to depend, upon the contingency of her being the survivor, 
as in M^Carmick v. BuUer ; but the power was so given as to autho- 
rise her, by executing it, to make an immediate disposition of the 
property, and even in favour of her husband, which she did ac- 
cordingly. The Court, therefore, acting upon the appointment, and 
her consent, necessarily ordered the transfer. 

Upon the same principle, the case of Newman r. Cartony may be 
reconciled, if the wife made an appointment ; but which does not 
appear in the short "note of the report, (b) So that when the wife 
takes an estate for life, with a power of immediate disposition of the 
property, and in default of appointment, to herself absolutely, it is 
presumed, that if she execute the power in favour of her husband, 
and consent to waive her right to a settlement, the Court will order 
an immediate transfer; but not without her having executed the 
power ; otherwise the Court, by her mere consent, would be autho- 
rising her to pass an interest in her property which could not possibly 
fall into possession during the marriage, viz. her interest in default of 
appointment, and to do which the Court has no jurisdiction, as before 
appears. 

But in all cases where the interest of the wife is such, that the 
Court will accept her consent to the passing of it, the property must 
be first ascertained, and the amount clearly known. 

(a) The examination is unnecessary (b) 3 Bro. C. C. 346 — notis, 
in cases of this description, the property 
passing by the appointment: Sturgis 
V. Corp, 13 Ves., 190. 



I 



46 2 APPENDIX. 

Thus, in Edmonds v. Townshend (a), in answer to a proposal that 
the wife's consent might be taken for the whole amoimt of the fiind, 
without deduction, which would cover any less sum to which by abate- 
ments it might be reduced, the Court of Exchequer said, *^ that would 
be in effect taking her consent now to a sum to be ascertained at a 
future time, and be thereby depriving her of the power of changing 
her mind in the interim, which ought not to be done.** 

And in Sperling v. Rochfort (6), Lord Eldon sud, it was settkdy 
that whilst the property was unascertained, the wife's consent was 
not to be asked by the Court ; and that whilst the Court could not 
Btate the amount of the property, it would not address to her any 
question, or speculate upon what might be her inclination. Upon 
this want of certainty in the amount of the funds, his lliordship pro- 
nounced his decree in that case. 



No. V. 

On Dower and Curtesy of Estates subject to Conditional Limitations. 

By Mr. Roper, (c) 

If the wife's seisin be defeasible by a condition annexed to the 
grant, and the condition be broken, and the donor enters, the hus- 
band's right to curtesy will be defeated ; because the donor resumes 
his original and former estate ; by which resumption the seisin of the 
wife is the same as if it had never existed ; it being, by the donor's 
re-entry, defeated ab origine, with all the rights, charges, and incum- 
brances attaching to it before the condition was broken. 

Thus, if an estate were given to a married woman in fee, upon 
condition that in case she did not pay to B 1000/. within five years, 
the donor might enter ; if she do not pay the money, and entry is 
made, the donor becomes seised of his estate, as if such grant had 
never been made, and the wife's possession being thus defeated as if it 
had never commenced, there is no seisin upon which the husband can 
found a claim to curtesy. 



(a) 1 Anstr. 93. (c) Vide wpra^ vol. L pp. 135. 349. 

(h) 8 Yes. 180 : Jemegan o. Baxter, These remarks formed part of chap. I. 
6 Madd. 32, S. P. of Mr. Roper*8 treatise. 



APPENDIX. 463 

But it 18 not 80 of a limitation ; that has no retrospective operation or 
eflfect, it merely shifts the estate from one person to another, leaving 
the prior seisin undisturbed ; and whenever an estate is given over to 
a stranger, whether expressed by the word "condition" or not, the dis- 
position over, upon non-compliance with the terms of the gift by the 
first donee, is a limitation ; for since the donor or his representatives 
only can take advantage of a condition, it would be in their power to 
disappoint the disposition over, by refusing to enter for a breach, if it 
were not considered a limitation, according to which, when the estate 
of the first donee determines, the one next limited commences, and 
the person intitled may enter upon the lands the instant that the 
failure happens, {a) 

This introduces the consideration of a distinction (6), which has 
been alluded to as prevailing on the subject of curtesy, viz. that where, 
in its creation, the wife's estate of inheritance is not made determinable 
sooner than by its natural expiration, t. e. upon a failure of issue or 
heirs, the husband will be intitled to curtesy, although such estate 
expires upon the wife's death without leaving issue ; but that where 
the fee is originally devised or limited in words importing a fee simple 
or fee tail, absolute or unconditional, but by subseqvent words it is 
made determinable upon a particular event independently of its natural 
expiration, if, in that case, the event happen, the husband's curtesy 
will cease with the estate to which it is annexed ; so that if a grant 
were made to the wife in fee simple or in fee tail of lands, whilst, or 
so long as A had heirs of his body, or until B attained twenty-one, 
and then to B in fee ; if A died without issue, or if B attained twenty- 
one ; then since the wife's estate became determined by express limit- 
ation, the husband's curtesy would not, according to such distinction, 
be continued, as it would have been if the estate had been given to 
the wife and to her heirs, or to the heirs of her body without the an- 
nexation of either of the defeating or determining clauses, and the 
wife's interest had naturally ceased by her death, without leaving 
issue. 

The above distinction, in regard to the two limitations, is subtle, 
and may be considei*ed unsatisfactory. In instances of conditions, the 
reasons for denying the husband's curtesy are clear, and have been 
before stated ; but why the husband should not be intitled to curtesy, 
equally upon a limitation to bis wife in tail, determinable upon the 

(a) 2 Black. Com. 155. refers to chap. 9. sec. 2. of his trea- 

(b) On this question, Mr. Roper tise. 



464 APPENDIX, 

event of A attaining twenty -one, and then to A in fee, as he would 
be if there had been no such determining event tacked to the wife's 
estate, and she died without leaving issue before him, is not so clear, 
upon reference to the principles of the decisions in other cases. 

It is admitted that both limitations have defeating clauses attached 
to them; the one the contingency of A attaining twenty-one, the 
other an implied condition in favour of the donor and his heirs, upon 
non-alienation and failure of the issue of the donee ; whence it might 
be urged, with some plausibility, that as the latter of the two limita- 
tions is strictly conditional, the entry of the donor, upon failure of 
issue, would, as in other cases of conditions, defeat the curtesy of the 
husband ; yet we have seen that in this instance the husband's right 
to curtesy has been settled and adjudged; but with respect to the 
former of the two limitations, since it is not conditional in the legal 
sense of the word, but a limitation, which does not disturb the prior 
seisin of the wife, or the initiate title of the husband to curtesy, it 
may be asked, why should not the law in this instance, as in the other 
cases before mentioned, continue that seisin for the completion of the 
husband's title, as tenant by the curtesy ? I know of no case con- 
taining an express decision to the contrary ; and the inferential rea- 
soning is not correct, that because the incidents or consequences 
flowing from the two limitations differ in some respects, they must, 
therefore, differ in alL These two limitations do indeed agree in one 
particular ; they do not disturb the seisin which the wife had pre- 
vious to the happening of the events which determined her estate ; 
so that all the authorities applicable to show the continuance by the 
law of the wife's estate for the curtesy of the husband after her 
estate determined by a failure of issue, apply also to the other limita- 
tion above described. The cases which have been supposed to au- 
thorise the distinction between the different effects of the two limita- 
tions in regard to curtesy do not appear to have been determined upon 
that point. It is true that in Boothby v. Vernon (a), before men- 
tioned, the Court said, that wherever the wife's estate was to determine 
be express limitation or condition upon her death, curtesy did not 
attach, but that dictum must be considered in relation to the facts of 
the case, and then it would mean no more than this, that where the 
wife had a life estate only by express limitation, with the reversion 
in fee, subject to a contingent remainder in tail to her issue male, if 
she left any ; the reversion being executed in her sub modo only (i. e. 

(a) 9 Mod. 147. 



ArPENDix. 465 

to separate from the particular estate as if they had never been united, 
upon the contingency happening); if the wife leave a son at her 
death (as she did in Boothby v. Vernon), she was to be considered as 
having been seised of an estate for life only during the marriage, 
which estate having determined by express limitation at her death, 
her husband could not make a title to curtesy, (a) And with re- 
spect to the case in Leonard (i), A covenanted to stand seised to the 
use of B, her eldest daughter in tail, upon condition that B should pay 
to her sister C, within a year after A*s death, or within a year after 
C should attain the age of eighteen, the sum of 300/. ; and if B failed 
to make such payment as aforesaid, then to the use of C in tail. B, 
after A's death, married, had issue, and died without leaving issue be- 
fore the period arrived for payment of the 300Z. Question, whether 
her husband should have curtesy? And the Court decided in his 
favour, upon the ground, that as the estate tiul in B determined by 
her death without issue, her husband, as settled in such cases, was in- 
titled to curtesy. Such alone was the point expressly determined. 
And in Flavill v. Ventrice (c), a case of dower, no decision appears 
to have been made, the opinions of the four judges having been equally 
divided. Consider, then, this question upon reason and principle. It 
is settled that in every case, where a man takes a wife seised of such 
an estate in lands, as that the issue which she has by him might by 
possibility inherit them as heir to her, he shall, after her death, hold 
the lands for his life as tenant by the curtesy : if, tlierefore, at any 
time during the marriage, the wife is seised of the inheritance, and 
have heritable issue, it seems to be a necessary consequence, that 
whether her estate determine by the death of such issue, or by any 
event subsequent to such seisin, attached to such estate, where it is not 
avoided ab initio^ the inchoate right to curtesy shall not be defeated 
by either of those events taking place. Besides, the husband's title to 
curtesy is not merely derived out of, or dependant upon his wife's estate, 
but it is created by law, it is a privilege and benefit of law annexed 
to the gift ; and the law, as I conceive, says, that as the estate re- 
mains ((f), and the husband's right to curtesy once attached to it, such 
right shall be a charge upon the estate, into whose possession soever it 
may afterwards come during the marriage. In this respect, curtesy and 
dower are governed by the same principle. The very case in ques- 

(a) Mr. Roper refers to toI. i. p. 9, (c) Roll. Abr. €76; Goldsb. 81. 
and chap. 9, sect 2, pi. 4, of his treatise. (d) See pp. 14, 15. [toI. i. p. 132 of 

Qi) Sammes v, Pa/ne, 1 Leon. 167. this treatise.] 

H H 



466 APPENDIX. 

tion was put by Anderson, J., in the case of Sammes v, Paynes before 
referred to, viz. that if a feoffment were made to the use of J. S. and 
his heirs, until J. D. had done such a thing, and then to the use of J. D, 
and his heirs, and the thing was done, and then J. S. died, the wife of 
J.S. should be endowed. This appears to have been admitted in Doe 
v. Hutton (a) ; and the above observations seem to be supported by the 
authority reported in a note to the last case referred to: — Devise to 
trustees and their heirs, to receive the rents and profits of an estate, 
and apply them for the maintenance of Mary Barnes, imtil she arrived 
at the age of twenty-one, or until she married, and upon her arrival 
at that age, or marrying^ to the use of Mary Barnes in fee ; but m 
c€L8e she died before the age of twenty-one, and without leaving issue, 
remainder over. Mary married, and had a child, which died, and 
then she died under the age of twenty-one. Question, whether 
Mary's husband was intitled to be tenant by the curtesy? And 
Lord Mansfield and the other judges decided in favour of the husband's 
title : his lordship observing that tenancy by the curtesy existed be- 
fore the statute De Donis ; that estates at that time were of two sorts, 
conditional or absolute, and that curtesy applied to both ; that at com- 
mon law, the only modification of estates was by condition : that all 
ths cases which had been cited went upon the distinction of their 
being conditions, and not limitations, and that in the present case the 
wife, during her life, continued seised of a fee simple, to which her 
issue might by possibility inherit, (b) 

(d) 3 Bos. & Pull. Rep. C. P. 652. Trin. Term, 25 Geo. 3 ; 3 Bos. & Pull. 

(b) Buckworth r. Thirkell, K. B. 652, n. ; 1 Coll. Jurd. 332. 



APPENDIX. 467 



No. VI. 

On D&wer and Curtety of Estates subject to Conditional Limitations. 

By Mr. Jacob, (a) 

The question whether the right to curtesy or dower continues after 
the estate of the wife in the one case, or of the husband in the other, 
has determined by limitation, or by an executory devise, is one much 
embarrassed by conflicting authorities. It is ably discussed by 
Mr. Park, (i) 

It has been seen, that where the husband or wife is seised in fee 
tail, the right of dower or curtesy continues notwithstanding the 
determination of the estate or failure of issue. The principle on which 
the estate is thus prolonged beyond its natural expiration, is, as 
Mr. Butler remarks, at this period, rather to be guessed at than 
demonstrated. The reason assigned in Paine's case, is, that dower 
and curtesy being the legal incidents of an estate in fee, are considered 
to be tacitly implied in the grant of that estate, (c) 

But in cases where the estate determines by entry for a condition 
broken, or by reason of a defectiye title in the grantor, it has been 
seen that the right to dower or curtesy is also defeated. 

Where the estate by the original grant or devise creating it, is to 
continue till some specified event shall happen, it seems that dower or 
curtesy will not continue after that event has happened. Thus, where 
land or rent is granted to one and his heirs till the building of St. Paul's 
shall be finished, if the event happens, dower shall cease, (d) The 
case of a rent reserved on an estate tail, which determines by failure 
of issue, is an instance of the same kind, (e) So if a rent be granted 
with condition to cease during the minority of the grantee's heir, the 
wife of the grantee will be endowed of the rent with a cesset ezecutio, 
daring the minority of the heir. (/) 

It appears, therefore, that in all cases of estates governed by the 

« 

(a) Vide suprd^ vol. I. pp. 135. 849. (e) Ibid. : and Co. Litt. 30, a. 
These remarks formed No. 2 of the ad- (/) Jenk. p. 4, F. N. B. 149, note : 
denda to Mr. JacoVs edition of Roper. Perk. 327 : 10 Mod. 367 : see also Park 

(b) Treatise on Dower, p. 168; see onDower, p. 162: Preston on Abstracts, 
also Butl. Co. Litt. 241, a, note 4. vol. iii. p. 373 : contra, Butl. Co. Litt. 

(c) 8 Co. 68. 71. 241, a, note 4. 

(d) Jenk. p. 5, Cent. 1, Case 6. 

HH 2 



468 APPENDIX. 

rules of the common law, the right to dower or curtesy was only co- 
extensive with the duration of the estate, with the exception of the 
case of an estate tail determining by failure of issue. But upon the 
introduction of conditional limitations by way of use and executory 
devises, it became a question whether dower or curtesy should cease 
when the estate was determined by either of these modes. Upon 
principle, it would seem that the decision of this question ought to be 
guided by analogy to the general rule of the common law, and not by 
analogy to the excepted case of an estate tail. If the principle of that 
exception be that which is stated by Lord Coke, it can have no 
application to an estate determined by conditional limitation. If 
dower and curtesy be tacitly implied in the gift of an estate tail, they 
are enjoyed after failure of issue as part of that which is granted. 
But the conditional limitation destroying the estate, defeats the whole 
of that which is expressly granted. It would be singular, if that 
which is included in the grant by implication only, could be pre- 
served, (a) Mr. Preston observes, that " the cases of dower of estates 
determined by executory devise and springing use, owe their existence 
to the circumstance, that those estates are not governed by common- 
law principles : and when the limitation over was allowed to be valid 
against the former donee, it was on the terms that the limitation over 
should not impeach the title of dower of the wife of that donee.*' (b) 
And if it be the rule, that dower and curtesy are exempted from the 
operation of limitations of this description, it probably originated in 
some indulgence shown to these interests, at the period when the 
validity of such limitations was established. But it will be seen that 
the supposed rule rests on very doubtful grounds. 

The case of Flavill r. Ventrice (c) was not decided, the judges 
being divided upon the question, whether dower was defeated by a 
shifting use. The case of Sammes v. Payne (d) decided only that 
curtesy continued after the expiration of an estate tidl by fiulure of 
issue, and though some conflicting dicta are to be found in the reports 
of that case, the comparison of them made by Mr. Park shows that no 
certain result can be deduced from them. In Buckworth v, Thirkell (^), 
the question was decided in favour of the continuance of curtesy. 

(a) See Park on Dower, 185.' (e) 3 Bos, & Pull. 652, note: 1 Coll. 

(b) Abstracts, vol. ill p. 373. Jur. 332. 

(c) 9 Vin. Ab. 217. 

Icf) 1 Leon. 167 ; 8 Co. 67 ; Goldsb. 
81 ; 1 And. 184. 



APPENDIX. 469 

That decision has has generally been much questioned, (a) It is, 
howeyer, said to have been followed by a case of Goodenough v. Good- 
enough, mentioned by Mr. Preston. This case has been shortly 
noticed by Dickens (i): the following statement of it is extracted 
from the Register's Book, (c) 

B. Serle devised certain estates to his nephew William Goodenough 
and his heirs for ever, subject to the condition and limitation after 
mentioned ; viz., that in case his said nephew should happen to die 
unmarried, and without issue of his body lawfully begotten, his will 
was, that the devise and devises thereinbefore made should, in any or 
either of those cases, cease and be absolutely void ; and in that case he 
gave the estates to his nephew Richard Jocelyn Goodenough. 

The testator died, leaving R. J. Goodenough his heir at law. 
William Goodenough afterwards married the plaintiff, having first, 
by articles previous to the marriage, agreed to settle lands of sufficient 
value to secure a jointure of 200/. per annum to her for life, with re- 
mainder to the issue of the marriage. 

By his will he gave his personal estate to the plaintiff, and appointed 
her executrix, and recited that his brother Richard would have the 
estates left him after his (WiUiam's) death by R. Serle, and as he left 
them to his brother without any litigation, which there was the 
greatest room for, he hoped he would have the generosity to pay his 
wife her dower regularly, and without dispute. He died without 
issue, leaving his brother his heir at law. 

The bill prayed that the plaintiff's jointure might be made good 
out of the lands devised by Serle, or that she might be endowed out 
of those lands. It submitted, that the estate of William in those lands 
became absolute on his marriage ; or that, if the devise over was in- 
tended to take effect on his dying without issue, then that it was void 
as being too remote, or that it reduced the estate of William to an 
estate tail ; and, therefore, that the plaintiff was Intitled to dower. 

The defendant R. J. Goodenough, by his answer, insisted that 
there was no agreement on the marriage of the plaintiff for a settle- 
ment of the lands in question ; aud submitted that she was bound, out 
of the personal estate of her husband, to purchase lands of the value 
of 200^ per annum, upon the trusts of the marriage articles, under 
which he would become intitled on her death. He submitted, that 

(a) Co. Liu. 241, a, note 4 : 3 Bos. (c) 31 Jan. 1772: Reg. Lib. A. 1771, 
& PulL 653. fo. 557. j 

(h) VoL ii. 795. 

HH 8 



470 APFENDIX. 

die executory devise in the will of B. Serle vris intended to take 
effect on the death of William, unmarried, or without issne ; and thai 
the testator haying coupled those events in the same sentenoe, the 
latter must be understood to refer to the death of William, and there- 
fore was not too remote. 

The decree declared, that according to the true oonstructton of the 
will of William Ooodenough, the plaintiff was intitled to have dower 
only out of the estates of which he died seised, and refi^red it to tfatt 
Master to take an account of the rents and profits, and to set apart 
and allot sufficient of the said estates, as and for the dower of the 
pbuntiff therein. 

From the language of the decree, referring the plaintiff's right to 
her husband's will, it is probable that the Court adopted the view 
submitted bj the bill, holding the husband's estate to be absolute ; 
and if so, the decision does not affect the present question* 

A case doselj corresponding with Buckworth v, Thirkellhas lately 
occurred, and has received a similar decision in the Court of Common 
Pleas, (a) The father of the husband devised to him and his heirs 
for ever, all his houses, &c., subject to the payment of an annuity ; and 
if the ssud W. F. (the husband) should have no childreii, child or issue, 
the said estate was on the decease of the said W. F. to become the 
property of the heir at law, subject to such legacies as he the said 
W. F. tiaight leave by will to any of the younger branches of the fiunily. 
It was decided, that under this devise, W. F. took an estate in fee, 
with an executory devise over, in the event (which happened) of his 
dying without issue, to the person who should then be the testator's 
heir at law. {b) It then became a question, whether his widow was 
intitled to be endpwed ; and a bill having been filed by her for that 
purpose, a case was stated for the opinion of the Judges of the Com- 
mon Pleas, who certified in her favour. The judgment of the Lord 
Chief Justice proceeded chiefly upon the authority of Buckworth v. 
Thirkell, and the supposed authority of Goodenough r. Ooodenough ; 
and upon the consideration that, from the nature of the limitations, 
the case came within the definition of Littleton (c), according to 
which the right to dower exists where the husband's estate is such, 
that the issue the wife may have by him may inherit, (d) 

(a) Moody v. King, 2 Bing. 447. (d) It is understood that this case is 

(b) Doe d. King v. Frost, 3 Barn. stiU unider litigation, and that it wiU 
& Aid. 516. probably come before the Conrto again^^ 

(c) Sec 53. , 



AFPENDrX. 471 

These are the authorities in favour of the opinion, that dower and 
curtesy may continue after the determination of the estate by limi* 
tation. On the other hand, it was said in Boothby v, Vernon (a), 
that *' wherever the estate is to be determined by express limitation 
or condition upon the death of the wife, there the husband shall not 
have curtesy;** and according to one of the reports of Sammes r. 
Payne, the reason given for the husband's having curtesy of an ex-* 
pired estate tail was, that it was ** spent and determined by the dying 
without issue, and doth not cease, or is cut off by any limitation." (b) 

The point arose in Sumner v. Partridge, (c) Land was devised to 
A and her heirs, and if she died before her husband, he to have 20Z. a 
year for life, and the remainder to go to her children. The wife died 
before the husband. The Master of the Bolls treated it as clear, that 
the husband was not intitled to curtesy ; and for this reason, that 
the mother's estate of inheritance ceased the moment she died, and 
the children took not by descent, but by virtue of the remainder over : 
neither a tenant in dower or curtesy could intitle themselves to an 
estate in dower or curtesy, where the children who were left could 
not possibly take an inheritance, for the moment of time when the 
husband takes as tenant by the curtesy the inheritance must descend 
upon the children. 

The decision in the case of Ray v, Pung (d) materially influences 
the point under consideration. An estate liable to be determined 
by a springing or shifting use, is not in substance distinguishable 
from an estate liable to be determined by the exercise of a power of 
appointment : the effect is the same, whether the new use is to arise 
on the execution of the power, or on any other uncertain event taking 
place. In either case it arises from the original instrument, talcing 
effect, in point of time, from the period when the event happens : and 
since it has been settled that the right to dower is defeated by the 
appointment, it seems to follow that the same rule must prevail with 
respect to estates determined by shifting or springing use ; and the 
case of an executory devise must be goveraed by similar considera- 
tions. In the argument of Ray v. Pung, and in the Vice-Chancellor's 
judgment, the questions were looked upon as nearly the same in sub- 
stance; and Buckworth v, Thirkell was referred to as one of the 
main authorities in favour of the widow's right. It does not appear 
that this analogy was adverted to in the late case of Moody v. King. 

(a) 9 Mod. 150. (c) 2 Atk. 47. 

(6) 1 Leon. 168. (d) 6 Bam. & Aid. 561 ; 3 Madd. 310, 

H H 4 



472 APPENDIX. 

With respect to tbe case of Buckworth v. ThirkeU, it may be 
doubted whether the Court intended to decide generally that curtesy 
should exist, notwithstanding the determination of the estate by 
executory devise, or whether it turned upon the particular nature 
of the limitation. The wife was seised in fee, subject to an 
executory devise over, in the event, which happened, of her dying 
under age, and without leaving issue. Hence, if she had left children 
they would have been intitled by descent ; and the judgment of Lord 
Mansfield proceeded chiefly (if not entirely) upon the ground that the 
case for this reason came within the definition of curtesy, that the 
wife had an estate of inheritance, which any issue she might have had 
by the husband would have inherited, and tbat that estate continued 
during her life. The decision of the Court of Common Fleas, in 
Moody v. King, seems to have have been founded on similar reasons ; 
and the case of Goodenough v. Goodenough (if it involved this question) 
is open to the same distinction. These cases, therefore, (supposing 
their authority to be admitted) cannot be considered as deciding any 
thing, except where the death of the husband or wife, without leaving 
issue, is the event upon which the estate is determinable. Still less 
do they apply to cases where the limitation depends upon an event 
which happens during the coverture. To sustain the argument in 
favour of dower and curtesy in such cases, it would be necessary to 
contend, that after the estate of the husband or wife had ceased, 
and the party intitled under the limitation over had entered, the 
former estate should partially revive upon the determination of the 
coverture. The doubt in the case of Flavill r. Ventrice did not go to 
this extent, the event not having happened till after the husband's 
death ; and though, according to one of the reports of Sammes v. 
Payne (a), this point was put by one of the judges, yet the absence of 
the passage from the other reports of the case, and the other discre- 
pancies between them which Mr. Park has pointed out, show that 
very little reliance can be placed on the authenticity of this dictum. 

It may be concluded, that there is no authority for the continuance 
of dower or curtesy after the determination of the estate by con* 
ditional limitation or executory devise, except where it determines by 
the death of the husband or wife without leaving issue, and that it is 
still extremely questionable whether that exception can be supported. 

(a) 1 Leon. 166. 



AFPENDIX. 473 



No. VII. 

On the Mode of Election by a Feme Covert in a Suit* By 

Mr. Jacob, (a) 

In the cases in which married women have been decreed to elect, 
there has been much variety of practice as to the mode in which 
their election is to be declared. The cases are collected by Mr. 
Swanston, in one of the able and learned notes on the subject of 
election, in the first volume of his Reports, p. 415. Sometimes the 
election of the married woman has been made upon a personal exa- 
mination in court, or before commissioners appointed for the purpose. 
Parsons v. Dunn, 2 Ves. 61 : Ward v. Baugh, 4 Ves. 623. In 
one case, she was ordered to signify her election by signing the regis- 
trar's book, by her clerk in court, within a limited time. Pulteney 
V. Darlington, 7 Bro. P. C. ed. Toml. 546, 547; 1 Swan. 416; and 
in finother to make her election before the Master within six months. 
Yane v. Lord Dungannon, 2 Sch. & Lef. 133. 

In other cases it has been referred to the Master to inquire what 
election would be most beneficial for the married woman. Wilson 
V. Townshend, 2 Yes. Jun. 693 ; and see 9 Yes. 350. This course 
was adopted in Pulteney v. Darlington, when she had failed to com* 
ply with the order for electing through the medium of her clerk in 
court 

It has been said (2 Yes. Sen. 61 : 2 Yes. Jun. 560) that a reference 
to the Master is the proper course, in case of the husband and 
wife disagreeing as to the election : a supposition inconsistent with 
the other cases, which appear to treat the election as the sole act of 
the wife. 

In Wilson v. Townshend, ub. sup., the value of the funds appearing 
on the pleadings, the Court being itself able to judge what would be 
most for her benefit, determined her election without a reference. 
That case is singular in some of its circumstances: — The Court, in 
considering which election would be most beneficial to the wife, ap- 
pears to have been influenced only by the comparative value of the 

' (a) Fufe Mcpro, vol. I. p. 158^ and vol. ii. vol. i. p. 28. of Mr. Ja€ob*0 edition 
p." 63. These remarks formed a note to of Roper. 



474 APPENDIX. 

fundSj without regard to the circumstance that one of them was given 
to her separate use^ and dismissed her bill without allowing her an 
option to accept that provision. 

In Wright r. Rutter, 2 Ves. Jun. 673, 4 Ves. 535 ; Brodie v, Bany, 
2 Ves. & B. 127, Reg. Lib. A, 1812, foL 1437; and Bradish v. 
Bradish, 2 Ball & B. 491, it does not appear in what particular 
mode the election was to be signified. 

The election of a feme covert may also in some cases be determined 
by other acts besides an express election made in a suit for that pur- 
pose. In Stratford v. Powell, 1 Ball & B. 1. 24, a widow bound to 
elect under her husband's will, by settlement on a second marriage, 
reserved her property to her separate use ; and it was held that acts 
done by her during her second coverture fixed her election. In Ar- 
desoife v. Bennet, 2 Dick. 463, a married woman was intitled to an 
estate which was attempted to be devised away by a will, giving to 
her separate use a legacy of much greater value : she received the 
interest of the legacy, and was held to have thereby made an election, 
binding on her heir. [See also Parke v. Downing, 2 Jur. 28.] 

In cases of real estates, if she joined her husband in selling part of 
one of them, it would seem that this must be held to be a conclusive 
election. The decree in Brodie v. Barry, ub. sup., declared that the 
heiress of the testator's heritable estates in Scotland was bound to 
elect, if she had not already elected ; and with a view to the latter 
point, directed an inquiry whether she and her husband had sold any 
and what parts of the heritable estates, or whether they had done 
any other acts in respect thereof. See also Lewis v. King, 2 Bro. 
C. C. 600. 

Where neither of the funds is ^ven to her separate use, it may be 
presumed, upon general principles, th^t acts in pais, done while under 
the disability of coverture, will not constitute an election. See Old- 
ham V. Hughes, 2 Atk. 452 ; Cunningham v. Moody, 2 Yes. Sen. 170. 
Where one of the funds only is given to her separate use, Ardesoife 
V. Bennet, tib, sup.^ is an authority in favour of her capacity to 
elect by acts done out of court; but that case turned partly on 
the value of the property. On this point see Wilson v. Townshend, 
ub, svp. 

In case of the wife dying without having made a conclusive 
election, it has been intimated that it might be determined by a re- 
ference to inquire which wouM have been most for her advantage. 
2 BaU & B. 25. 



Ai>!PBin)ix. 475 

When the interests or inclinations of the husband and wife on the 
subject of election happen to be at yariance> a question arises how far 
an election made by the wife^ or by the Court, or the Master on her 
behalf, can affect the marital rights of the husband in the property 
relinquished. Some discussion on this question appears to have 
taken place in Pulteney v. Darlington : that case ended in a sort of 
compromise (see 2 Yes. Jun. 560), but the opinion of Lord Chief 
Justice De Grey, cited in the text, and the form of the decree, imply 
that the husband's interest is bound by the election made by the wife, 
or on her behalf. In Parsons v. Dunn, and Bradish r. Bradish, (cases 
relating to personal estate) the question appears to have been con- 
sidered in the same way. In Vane v. Lord Dungannon, where the 
property taken under the will was real estate, the decree was framed 
upon this principle, which seems also to be &T0ured by the cases of 
Ardesoife v. Bennet, and Wilson v. Townshend. On the other 
hand, in Brodie r. Barry, where the wife was put to elect between a 
bequest to her separate use and heritable estates descended, it was 
taken to be clear that the husband's marital right in the latter could 
not be prejudiced by her election. 

A distinction may, perhaps prevail on this point between those 
cases where the property proposed to be relinquished by the wife 
consists of a legacy or a trust fund of a personal nature, and those 
where it consists of real estate. In the former cases the husband 
has not an absolute right in the property ; his interest in it is sub- 
ject to the control of a court of equity, which has authority to apply 
a part of the fund, or even the whole, in such a manner as circum- 
stances may render most beneficial to the wife and her children. 
But in the latter cases, the marital right, which the law confers on 
him, is not subject to any equitable qualifications. It being settled 
that election is not a legal doctrine (Harford v. Dillon, 2 Brod. & 
BiDg. 12. Seel Swan. 430, tz.), and the wife alone having no 
power to convey or to waive the estate, her election to relinquish it 
cannot be carried into effect without his concurrence; and it does 
not appear upon what principle that election could authorise a court 
of equity to compel him to convey away the legal interest vested in 
him. 

It may be remarked that the husband may disagree to or waive an 
estate acquired by his wife, Co. Litt. 3, a. Yin. Ab. Disagreement, 
pi. 6, 22. How far the exercise of this legal power is controllable in 
equity, is a question which does notuppear to have arisen. 



476 APPENDIX, 

[In the late case of WaU r, WaU, V.C.E., 16Law J.N.S. Cihaii. 
305; 11 Jur. 403, the question was raised as to the effect of the 
wife's election where the fund proposed to be relinquished waa a 
reversionarj chose in action^ but it was not decided.] 



No. VIIL 

Of the Wifis Remedy against her Husbands Discontinuance by 

Remitter. By Mr, Roper, (a) 

After considering the remedy given to the wife by the statute of 
Henry the Eighth against her husband's discontinuance of her estate, 
it is proper to notice the provision made by the common law to repair 
the injury whenever the opportunity offered. In order to understand 
this subject, it will be necessary — j^rst, to consider the commoD-law 
remedy ; and secondly, the alteration made in it by the statute of 
uses (J), and the act of the 32 of Henry the Eighth, (c) 

1. The common-law remedy by remitter. 

Kemitters are twofold : the Jirst is when a person, having a prior 
and perfect right to an estate recoverable by action only, has cast 
upon him and not gained by his own act si, defeasible estate of freehold 
in the same premises. The second is where the party has the power 
of clothing his ancient right by entry. In the first case, since the 
party cannot bring an action against himself to establish his prior and 
better right, the law affords redress by remitting him to such right, 
i. e. in extending to him the same advantages as if there had been no 
obstacle to his recovery, and he had been in a situation to have com- 
menced, and had prosecuted with effect, a real action to establish his 
prior right (rf) In order to effect this species of remitter, the second 
defeasible estate must be an immediate freehold and cast upon the 
party having the prior right recoverable by action only, because the 

(a) Vide supra, vol. 1. p. 168. This suijuns, may, it seems, waive his former 

formed sec. 3. of chap. 2. of Mr. Roper's right of action, and elect to hold the 

treatise. new estate without being remitted. Bro, 

(6) 27 Hen. 8. c. 10. Bemitter, pi. 89 : 2 Boll. Rep. 34 : 18 

(c) Chap. 28, Vin. Ab. 454, pi. 2, 8, contra, KeUw. 20. 

(d) Bat the party on whom a defea- .— N^ote by Mr. Jacob. 
Bible estate of freehold is thus cast, if 



APPENDIX. 477 

action could not be brought against a person having less than an 
estate of freehold ; and until the party were intltled to the possession 
no right of action could accrue. But this second estate must not 
have been acquired bj the act of the person to be remitted^ for 
against his own deed and agreement he would not have been allowed 
to recover his prior right in an action if he had been under circum- 
stances enabling him to have brought one. (a) Hence, if the party 
could have no remedy by action for his first or old right, if the de- 
feasible estate of freehold were in another person instead of being in 
himself, he cannot be remitted (b) ; as where he is barred of his first 
right by the fine or warranty of his ancestor, (c) 

Suppose, then, tenant in tail to discontinue by feoffment the estate 
tail, and then to disseise or to turn out of possession the alienee, or to 
take back to himself an estate in tail, or for life with remainder to his 
first and other son and sons successively in tail, and to die seised 
leaving a son : in either of these cases the common law remits the 
son upon his father's death, but not before, because the son's right to 
the possession did not commence sooner (eQ; yet the father is not 
remitted, because it was his own act and folly to take back the 
defeasible estate, which circumstance is a bar to his recovering his 
former right by action, (e) 

But there was an exception to this latter doctrine arising from the 
nature of the estate which the discontinuor had at the time of the 
discontinuance. 

Thus, if husband and wife were tenants in special tail, with re- 
mainder to B, and the husband d